What we do
Themes
Regions
Departments and Offices
About the ILO
ILO Home
  
[an error occurred while processing this directive]

GB.269/4
269th Session
Geneva, June 1997

FOURTH ITEM ON THE AGENDA

307th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1872 (Argentina): Definitive report

The Committee's recommendations

Case No. 1887 (Argentina): Interim report

The Committee's recommendation

Case No. 1899 (Argentina): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1873 (Barbados): Interim report

The Committee's recommendations

Case No. 1850 (Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1905 (Democratic Republic of the Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1910 (Democratic Republic of the Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1865 (Republic of Korea): Interim report

The Committee's recommendations

Case No. 1918 (Croatia): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1851 (Djibouti): Interim report

The Committee's recommendations

Cases Nos. 1512, 1539, 1595, 1740, 1778 and 1786 (Guatemala):

Interim report

The Committee's recommendations

Case No. 1823 (Guatemala): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1876 (Guatemala): Interim report

The Committee's recommendations

Case No. 1898 (Guatemala): Definitive report

The Committee's recommendations

Case No. 1863 (Guinea): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1890 (India): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1877 (Morocco): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1907 (Mexico): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1864 (Paraguay): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1855 (Peru): Definitive report

The Committee's recommendations

Case No. 1878 (Peru): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1886 (Uruguay): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1812 (Venezuela): Interim report

The Committee's recommendation

Case No. 1909 (Zimbabwe): Definitive report

The Committee's recommendations

Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 29 and 30 May and 6 June 1997, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, Indian, Mexican and Zimbabwean nationalities were not present during the examination of the cases relating to Argentina (Cases Nos. 1872, 1887 and 1889), India (Case No. 1890), Mexico (Case No. 1907) and Zimbabwe (Case No. 1909), respectively.

* * *

3. Currently, there are 67 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 29 cases on the merits, reaching definitive conclusions in 17 cases and interim conclusions in 12 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1922 (Djibouti), 1924 (Argentina), 1925 (Colombia), 1926 (Peru), 1927 (Mexico) and 1928 (Canada/Manitoba), because it is awaiting information and observations from the Governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1787 (Colombia), 1805 (Cuba), 1843 (Sudan), 1867 (Argentina), 1884 (Swaziland), 1906 (Peru), 1908 (Ethiopia), 1911 (Ecuador), 1915 (Ecuador) and 1916 (Colombia). In Case No. 1852 (United Kingdom), for which the Committee has already received observations, the new Government indicated that it intended to present its own observations.

Observations requested from governments and complainants

6. In Case No. 1913 (Panama), the Committee decided to ask for additional information from the complainant and the Government in order to reach a decision in full knowledge of all the facts.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1880 (Peru), 1912 (United Kingdom/Isle of Man) and 1914 (Philippines), the Governments have sent partial information on the allegations made. The Committee requests all of these Governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1773 (Indonesia), 1897 (Japan), 1917 (Comoros), 1920 (Lebanon) and 1923 (Croatia), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting. In Case No. 1812 (Venezuela) for which it received the Government's observations, the Committee decided to ask the complainant to provide additional information so that it could make a decision on the receivability of the complaint.

Urgent appeals

9. As regards Cases Nos. 1869 (Latvia), 1888 (Ethiopia), 1892 (Guatemala), 1894 (Mauritania), 1895 (Venezuela), 1900 (Canada/Ontario), 1902 (Venezuela), 1919 (Spain) and 1921 (Niger), the Committee observes that, despite the time which has elapsed since the presentation of these complaints or since their last examination, it has not received the Governments' complete observations. The Committee draws the attention of all these Governments to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, even if the remaining observations or information requested from the Governments have not been received in due time. The Committee accordingly requests the Governments to transmit their observations or information as a matter of urgency.

* * *

Withdrawal of a complaint

10. In Case No. 1881 (Argentina), the complainant -- the Banking Association -- has sent a communication dated 24 April 1997 requesting the withdrawal of its complaint since the issue which had led to the complaint has been resolved. The Committee takes note of this information with interest. Having no reason to doubt that the decision of the complainant was taken in full independence, the Committee decides to close the case.

Irreceivable case

11. In respect of a representation concerning the violation of trade union rights in Denmark, transmitted by a law firm on behalf of the Association of SiD at Ri-bus in Esbjerg, the Association of Dustmen in Arhus, the Joined Association at Gate Gourmet, the Association of Scaffolders in Arhus, the Joined Pedagogic Associations of Tarnby and Dragor, the Association of Workers of the Danish Socialist People's Party, the National Association of Workers of the Danish Socialist People's Party and the Association of Brewers at the Ceres Breweries in Arhus, the Committee has concluded that none of the complainants fully meets the criteria of a national workers' organization directly interested in the matter and therefore considers that according to its procedure, it cannot examine the substance of this communication.

Transmission of cases to the Committee of Experts

12. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Argentina (Cases Nos. 1872 and 1899), Guatemala (Case No. 1898) and Morocco (Case No. 1877).

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

Case No. 1870 (Congo)

13. The Committee examined this case at its November 1996 meeting. The Committee had requested the Government to keep it informed of the measures taken to reinstate the trade unionists dismissed after strikes in protest against the lack of consultation of trade union organizations in the privatization process of a number of enterprises in the public sector and against the policy of structural adjustment, and to free the trade unionists imprisoned or sentenced for strike action -- more specifically Mr. Tchicaya and Mr. Mampuya -- as well as trade unionists from postal and telecommunications workers' unions affiliated to the Confederation of Free and Autonomous Trade Unions of Congo (COSYLAC), i.e. Mr. Lessita Otangui, Secretary-General of the Postal and Telecommunications Workers' Federation (FESYPOSTEL), Mr. Oba René Blanchard, President of the Postal and Telecommunications Workers' Trade Union (SYLIPOSTEL), Mr. Odzongo Médard from FESYPOSTEL, and Mr. Bouya Bernard from the Telecommunications Trade Union (SYNATEL), sentenced on 14 February 1996 to four months' imprisonment and a fine of 50,000 CFA francs [see 305th Report, paras. 134 to 147].

14. In a communication dated 14 November 1996, the Government states that, concerning the strike of January 1996, it agreed to the request from the workers' organizations and organized meetings under the chairmanship of the Prime Minister in order to explain developments in the privatization process to the representatives of the grass-roots trade unions. Following these meetings, the decision was taken to increase the number of trade union representatives on the privatization committee. In spite of this concession, the grass-roots trade unions, in disagreement with their trade union federations, demanded that the privatization committee be dissolved. As the Government had raised an objection to this claim, which was not included in the agenda of the negotiations, it was surprised by the strike subsequently called in all the major enterprises due for privatization. Inasmuch as an agreement had been reached on the basic claim of the trade unions, the Government felt that this strike -- which was not approved by the trade union federations -- was unfounded and it declared it illegal. This did not prevent the dismissed workers from all being reinstated in their respective enterprises.

15. Concerning the arrest and sentencing of trade unionists, the Government states that the trade unionists arrested and imprisoned had been duly prosecuted. Four trade unionists (Mr. Lessita Otangui, Mr. Oba René Blanchard, Mr. Odzongo Médard and Mr. Bouya Bernard) had been found guilty of infringing the freedom to work and sentenced to four month's imprisonment by the Second Criminal Court of the Brazzaville High Court. However, the trade unionists in question had obtained a reduction in their sentences and been released. Furthermore, a number of trade unionists were ordered to appear before the 32nd Magistrate's Court of the High Court for having destroyed state furniture and property. These trade unionists were released on bail while awaiting final judgement which should be handed down in the near future.

16. The Committee takes note of this information. It notes with interest that, according to the Government, the trade unionists dismissed for strike action have been reinstated in their jobs and that the four trade union leaders sentenced to four months' imprisonment for infringing the right to work obtained a reduction in their sentences and were released following the publication of a Presidential Decree of 20 May 1996 after having served two months of their sentence. The Committee nevertheless notes with concern that, according to the Government itself, legal proceedings are still under way against a number of trade unionists and a judgement is to be handed down. The Committee has expressed the opinion that penal sanctions should only be imposed regarding strikes, where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to send it a copy of all the judgements handed down in this case.

Case No. 1818 (Democratic Republic of the Congo)

17. The Committee examined this case at its November 1995 meeting [see 300th Report, paras. 350 to 370]. It had requested the Government to provide information on the condition of trade union members arrested during a labour dispute in the civil service in March 1995; to carry out an independent and impartial inquiry concerning the ill-treatment and torture allegedly meted out to a number of trade unionists who were duly named; to allow trade unionists dismissed on account of their trade union activities to be reinstated in their posts and to refrain from hampering the formation of trade union organizations.

18. In a communication dated 5 March 1997, the Government denies the arbitrary nature of the trade unionists' arrests. It points out that the arrests made on 24 March 1995 were preventive measures designed to guarantee public law and order. The Government explains that on 10 March 1995, a group of state officials had undermined public safety by carrying out violent demonstrations and that the authorities had taken preventive measures to safeguard the peace and held a number of demonstrators in custody. The competent judicial authorities, to which the matter had been referred, had supervised the conditions under which those concerned were held in custody. Nevertheless, the Government had intervened to request that custody be ended and that the trade unionists be immediately released. Concerning the trade unionists dismissed on account of their trade union activities, the Government states that it will order an inquiry to examine the facts and restore social justice. Furthermore, the Ministry of Labour and Social Welfare maintains that it has never refused the registration of a trade union whose scope is covered by the provisions of section 1 of the Labour Code.

19. The Committee takes note of this information. Recalling that no person should be subjected to anti-union discrimination on account of his or her legitimate trade union activities, the Committee requests the Government to keep it informed of the measures actually taken to guarantee the reinstatement of the trade unionists suspended or dismissed for having taken part in a strike. Furthermore, the Committee once again urges the Government to order immediately an independent and impartial inquiry concerning the ill-treatment allegedly meted out to a number of trade unionists in prison, especially with respect to the lashes of the whip given to Mr. Edouard Ngandu Mupidwa, a member of the Democratic Labour Confederation (CDT), at Ligwala in March 1995, and the alleged torture of Mrs. Muadi Kazongo, Mr. Odeon Mbaku and Mr. Mananua. It requests it to communicate the findings of the inquiry and the measures taken, including compensation for damages suffered in the event of the allegations of ill-treatment against these trade unionists being acknowledged.

Case No. 1833 (Democratic Republic of the Congo)

20. The Committee examined this case at its March 1996 meeting [See 302nd Report, paras. 535 to 554]. The Committee had requested the Government to keep it informed of developments on the situation of the trade unionists of the General Tax Directorate (DGC) arrested after a dispute with the Director-General of this public service, and specifically to indicate whether legal proceedings had been brought against them and what had been the outcome. The Committee had also requested the Government to submit its observations as soon as possible on the refusal of the DGC to undertake negotiations with the staff.

21. In a communication dated 5 March 1997, the Government explains that the staff of the DGC have the trade union status of public officials and that, on account of the prevailing conditions, trade union elections in the public service have not yet been organized. The Government assures that this situation will be resolved in the near future but that in the present context, it raises the problem of the representation of staff in most of the public sector services. According to the Government, the temporary trade union committee, which had been set up at the DGC, had not been established in accordance with the spirit of trade union pluralism which prevails in the country. Consequently, the responsible authority, i.e. the Ministry of Finance, had not recognized the existence of the said committee and requested the Director-General of the DGC to make inquiries with the Ministry of Public Service about the procedures his organization should take to have a duly elected trade union delegation. Thereupon, the members of the temporary trade union committee called upon the workers in the DGC to take collective strike action without complying with the procedure. A strike was therefore held on 17 April 1995, which paralysed the essential service of the DGC and disrupted public law and order. Consequently, two members of the staff of DGC, responsible for the occurrences, were sentenced on 7 August 1995 by the Court of First Instance of Gombe in Kinshasa to two months' imprisonment. After having served their sentences, those concerned started working again at the DGC. The Government gives its assurance that, to avoid such violations recurring in the future, experts from the Ministry of Labour will organize study days with the services concerned on the principles of freedom of association.

22. The Committee notes this information. Considering that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see para. 604 of the Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996], the Committee regrets that the trade unionists instigating the strike were sentenced. Furthermore, expressing the hope that trade union elections will be held without delay, the Committee firmly hopes that collective bargaining with the representative trade union organizations will resume in the near future in the public tax service with a view to settle the employment conditions of these public employees. The Committee requests the Government to keep it informed of the outcome of the negotiations in this sector.

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

23. At its March 1997 meeting, the Committee had requested the Government to take the necessary measures to ensure: (1) that the workers dismissed at Irho Lame due to a labour dispute dating from May 1993 be reinstated as soon as possible; (2) that Messrs Hassan Daboré and Diebre Boukary, who were in preventive detention further to a collective labour dispute dating from January 1995, be released immediately; and (3) that the social elections at the Autonomous Port of Abidjan be held as soon as possible and to keep it informed in this regard.

24. In a communication dated 5 May 1997, the Government states with regard to the first point that it has never refused the reinstatement of the dismissed workers and that it has tried to reconcile the parties through concrete proposals despite the intransigency of the Trade Union Federation Dignité. It once again reiterates that the management after having hired new workers went ahead with the restructuring which regrouped together agronomic research units. If the dismissed workers consider that their rights have been impaired they can appeal to the courts to have these rights restored. On the second point, the Government adds that Messrs Diebre Boukary and Hassan Daboré were released provisionally on 13 March 1997 given that they no longer constituted a threat for the enterprise. The Government provides a copy of the release orders. According to these, the victims declared unanimously during the course of the inquiry that Mr. Hassan Daboré had not taken part in the acts for which he was accused. As for Mr. Diebre Boukary, it appears that his detention is no longer necessary now that the truth has been ascertained. Finally on the last point, the Government indicates that the social elections at the Autonomous Port of Abidjan have not yet taken place due to a disagreement between the different trade unions on 24 April 1997. Some of these trade unions wanted the elections to take place immediately and the others asked for them to be delayed since they wished for a dockers' collective agreement to be drawn up before. The Government states that a reconciliation meeting took place on 28 April 1997 before the competent authorities and that a deadline has been given to the trade unions to agree on a date for the elections before 5 June 1997.

25. The Committee notes with interest that the trade unionists Messrs Hassan Daboré and Diebre Boukary were released in March 1997. It observes, however, that no charge had been made against Mr. Hassan Daboré and that according to the investigating magistrate himself Mr. Diebre Boukary's detention was no longer necessary now that the truth had been ascertained. Noting with deep concern that although these two trade unionists were released, they had been held for more than two years' detention without trial, the Committee recalls that the continued detention of trade unionists without bringing them to trial may constitute a serious impediment to the exercise of trade union rights and that justice delayed is justice denied. Concerning the reinstatement of the workers dismissed at Irho Lame in 1993, the Committee reiterates its previous request to the Government to indicate if the workers who considered that their rights had been impaired appealed to the courts in order to have these rights restored, and to keep it informed in this regard. Finally, the Committee recalls that the request to hold social elections at the Autonomous Port of Abidjan dates from 1993. Consequently, it urges the Government to ensure that these elections are held immediately and to keep it informed of the outcome thereof.

Case No. 1725 (Denmark)

26. When it last examined this case at its March 1994 meeting [see 292nd Report, paras. 197 to 229], the Committee had considered that certain aspects of Danish legislation and national practice were not completely in conformity with the principle of free bargaining of collective agreements with a view to regulating the terms and conditions of employment by means of collective agreements, as recognized in Article 4 of Convention No. 98. The Committee had reached this conclusion particularly in respect of section 12 of the Conciliation in Industrial Disputes Act which allowed the public conciliator to link various draft settlements of all occupational fields in a single draft settlement covering, inter alia, collective agreements for which the parties themselves could not agree to a renewal. The Committee had therefore invited the Government and the social partners to re-examine the legislation and practice in this regard.

27. In a communication dated 11 March 1996, the complainant (the Danish Union of Journalists) submitted a representation under article 24 of the ILO Constitution. The Governing Body, which declared the representation receivable, referred it to the Committee for examination in the context of the follow-up of Case No. 1725 since it raised the same issues as those raised in this case.

28. In a communication dated 14 April 1997, the Government indicates that it has amended the Conciliation in Industrial Disputes Act on the basis of the Committee's recommendations. In this respect, the Government refers to section 12(3) of the Act which now stipulates as follows: "A conciliation proposal may only be combined with other conciliation proposals if the negotiation possibilities within the field concerned are considered to have been exhausted. The Public conciliator decides whether this condition has been fulfilled." The Government adds that the Act has been further amended to relax the requirements as to the qualified majority needed to reject a conciliation proposal. The Government maintains, however, that the rule concerning the combination of proposals is a necessary element in the Danish industrial relations system, due, inter alia, to the fact that workers are organized into various trade unions at the enterprise level according to the nature of their work.

29. The Committee notes that section 12 of the Conciliation in Industrial Disputes Act as amended provides that, in the future, conciliation proposals from various occupational fields may be combined only if the Public conciliator is of the view that negotiation possibilities have been exhausted. The Committee notes, however, that under this system it will still be possible for an overall draft settlement to cover, inter alia, collective agreements involving an entire sector of activity even if the organization representing most of the workers in this sector rejects the overall draft settlement. The Committee would therefore recall, as it has done previously, that the extension of an agreement to an entire sector of activity -- in this case, journalism -- contrary to the views of the organization representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organization.

Case No. 1874 (El Salvador)

30. The Committee examined this case at its November 1996 meeting [see 305th Report, paras. 254 to 272, approved by the Governing Body at its 267th Session (November 1996)] when it presented the following recommendations on the matters still outstanding [see 305th Report, para. 272]:

31. In its communications dated 21 April and 12 May 1997 the Government states that the workers at the Rosales Hospital are directly employed by the central Government and are governed by the Salaries and General Budget Act. Consequently, they are not protected by the Labour Code. The Government adds that the members of the Nursing Personnel Craft Union of El Salvador are supposed to be workers who look after sick people but that the latest membership lists consisted of other workers (watchmen, metalworkers, plumbers, etc.) and only a few nurses. Since this is a violation of section 209 of the Labour Code, the executive board was not authorized to take up office. The appeal against this decision was denied on 14 August 1996. The executive board may be elected once a meeting is held of people who meet the requirements of the law and of the union's statutes. As regards the transfer of union officials, the Government repeats its position that this is not a reprisal for joining the aforementioned union but in keeping with the requirements of the service and that the transfers were ordered pursuant to section 37 of the Civil Service Act which states that officials or employees may be transferred to a similar post even without their consent at the convenience of the public or municipal administration, provided that the transfer is within the same locality.

32. The Committee notes the Government's observations which by and large reiterate its earlier statements. The Committee deeply regrets that the Government has not complied with its recommendations, stresses that the allegations relate to highly important issues such as the right to establish trade union organizations in the public sector and the right not to be subjected to anti-union discrimination, and finds itself obliged to repeat its previous recommendations. The Committee therefore urges the Government: (1) to take the necessary steps so that the legislation guarantees the right to establish trade union organizations in the public sector; (2) to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial trade union; (3) to make reparation for the acts of anti-union discrimination committed in the Rosales Hospital.

Case No. 1793 (Nigeria)

33. During its examination of this case in June 1996, the Committee had urged the Government to take the necessary measures to ensure that Mr. Kokori, General Secretary of NUPENG, was released immediately, that Decrees Nos. 9 and 10, dissolving the Executive Council of the NLC, NUPENG and PENGASSAN, were repealed immediately and to allow independently elected officials to exercise their trade union functions once again [see 304th Report, para. 13]. In view of the absence of the Government's response for the Committee's report of November 1996, the Governing Body had decided to address an urgent appeal to the Government of Nigeria, inviting it to reply as soon as possible to all the requests made since November 1995 with a view to authorizing an ILO mission to examine issues dealt with in the various complaints and to visit detained trade union leaders without hindrance, thus allowing the mission to present its report to the Committee as soon as possible. A communication in this regard had been sent to the Government on 26 November 1996 and then a reminder had been addressed to it on 5 February 1997.

34. In February 1997, the Committee took note of several new decrees and texts which appeared to indicate an expansive and systematic approach to diminishing trade union rights in Nigeria. Noting with ever-increasing concern the persistent deterioration of trade union rights in Nigeria, the Committee had reiterated, in the strongest terms, the Governing Body's appeal to the Government to accept an ILO mission at the earliest possible date to examine the outstanding matters of this case.

35. The Committee must once again note with deep regret that in spite of the assurances given during the last session of the Governing Body, the Government has not for the moment given any written reply to the requests of the Committee and the Governing Body or to the communications addressed by the Office on 1 April and 16 May 1997. The Committee notes, however, that the Ministry of Labour has indicated to the ILO office in Lagos that it is willing to receive a mission but that this would not be possible during the period preceding the International Labour Conference. In these conditions, the Committee strongly reiterates its request for a mission to examine issues raised in the case and in particular to visit detained trade union leaders. It urges the Government to respond positively to this request without any further delay.

Case No. 1698 (New Zealand)

36. During its last examination of this case at its meeting in November 1996, the Committee requested the Government to continue to keep it informed of any other relevant judgements rendered concerning the implementation of the Employment Contracts Act as well as of any developments in the discussions held with the New Zealand Council of Trade Unions (NZCTU) and the New Zealand Employers' Federation (NZEF) in this regard. The Committee also reaffirmed its previous recommendations and requested the Government to take the necessary measures to implement them. [See 305th Report, para. 50.]

37. In a communication dated 26 February 1997, the Government indicates that there have been no further significant cases relating to freedom of association since its last communication, but that it will continue to keep the Committee informed of any further developments in the case-law as they occur. The Government also states that the new coalition Government has agreed to include proposals to introduce a concept of "fair bargaining" into the Employment Contracts Act (ECA), perhaps through the incorporation of recent court decisions relating to issues such as the obligation to respect the choice of bargaining agent and not undermine the bargaining process by bypassing the agent, thus consolidating the principles established in the Capital Coast Health and subsequent related cases. All interested groups, including employer and employee organizations, will be invited to make submissions as part of the usual process of considering draft legislation. As concerns the recommendation that workers and their organizations should be able to call for industrial action in support of multi-employer collective employment contracts, the Government reiterates that there are no plans to remove the prohibition on such action set out in section 63(e) of the ECA since it considers that this provision provides a balance between employees' right to strike and employers' rights not to have to face strike action and incur losses due to the actions of other employers over which they have no control or to be bound into arrangements with competing businesses.

38. The Committee notes this information, particularly as concerns the coalition agreement to introduce the concept of "fair bargaining" into the ECA and requests the Government to keep it informed of the progress made in this regard. As concerns the Committee's recommendation with respect to industrial action in support of multi-employer collective employment contracts [295th Report, para. 261(c)], the Committee once again recalls that the determination of the bargaining level is a matter to be left to the discretion of the parties and that legislation should not constitute an obstacle to collective bargaining at the industry level, whereas section 63(e) of the ECA essentially removes the means of pressure that may be applied for the determination of that level. It therefore reiterates its previous conclusions in this case that workers and their organizations should be able to call for industrial action in support of multi-employer contracts. It requests the Government to keep it informed of any measures taken in the future to amend section 63(e) in this respect.

Case No. 1903 (Pakistan)

39. During its last examination of this case in March 1997 [see 306th Report, paras. 477-495], the Committee requested the Government to confirm that no charges had been maintained against trade unionists and workers who were detained and subsequently released following a demonstration at the Pak China Fertilizer Plant. The Government was also urged 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 could be carried out normally.

40. In its communication dated 29 April 1997, the Government advised the Committee that the decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union had been revoked by the Industrial Relations Commission (NIRC) on appeal. Consequently, the Registrar of Trade Unions reinstated the Union on 5 April 1997. Regarding the outstanding charges against workers of the Pak China Fertilizer Ltd. the Government states that with the exception of the President of the Union, Mr. Hakam Khan, and the General Secretary of the Union, Mr. Manzoor Hussain, whose services were terminated due to misconduct, there are no outstanding charges. The Government also notes that an appeal of the decision to dismiss for misconduct is presently before the local labour court.

41. The Committee takes due note of this information and requests the Government to forward to it a copy of the decision of the NIRC. Regarding the dismissal of Messrs Hakam Khan and Manzoor Hussain, the Committee requests the Government to keep it informed of the status of the labour court proceedings and any further appeal on this matter, and to forward to it a copy of the judgement as soon as it is rendered.

Case No. 1813 (Peru)

42. The Committee last examined this case concerning the death, assault and arrest of trade unionists at its March 1996 meeting [see 302nd Report, paras. 64 and 65]. At that time, after noting that the detained workers (Felix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz) had been released but after being charged the Committee asked the Government to keep it informed of the outcome of the proceedings. The Committee also requested the Government to inform it of developments in the judicial investigation into the death of trade unionists Alipio Chauca de la Cruz and Juan Marcos Donayre Cisneros and into the injuries sustained by other workers from shots fired by the CORDECALLAO security guards.

43. In a communication dated 26 March 1997, the Government states that Felix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz are charged with the offence of disturbing the peace and that the proceedings are currently at the allegations stage. The Government also states that, in the judicial investigation into the death of Alipio Chauca de la Cruz and Juan Marcos Donayre Cisneros, three people have been charged with causing grievous bodily harm resulting in the death of the trade unionists, with endangering law and order and with illegal possession of firearms. The Committee notes this information and requests the Government to keep it informed of the outcome of these judicial proceedings.

* * *

44. Finally, as regards Cases Nos. 1509 (Brazil), 1581 (Thailand), 1618 (United Kingdom), 1623 (Bulgaria), 1687 (Morocco), 1691 (Morocco), 1712 (Morocco), 1719 (Nicaragua), 1726 (Pakistan), 1761 (Colombia), 1796 (Peru), 1891 (China), 1825 (Morocco), 1826 (Philippines), 1834 (Kazakstan), 1837 (Argentina), 1847 (Guatemala), 1849 (Belarus), 1854 (India), 1857 (Chad), 1858 (France/Polynesia), 1885 (Belarus), 1891 (Romania) and 1896 (Colombia), the Committee requests the Governments concerned to keep it informed of any developments relating to these cases. It hopes that these Governments will quickly furnish the information requested. Furthermore, the Committee has just received information relating to Cases Nos. 1777 (Argentina), 1785 (Poland), 1809 and 1883 (Kenya), 1824 (El Salvador), 1856 (Uruguay), as well as 1862 (Bangladesh), which it will examine at its next meeting.

* * *

Case No. 1872

DEFINITIVE REPORT

Complaint against the Government of Argentina
presented by
the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI)

Allegations: Refusal of trade union personality

45. The complaint in this case is contained in a communication from the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) of February 1996. The Government sent its observations in a communication dated 15 May 1997.

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

A. The complainant's allegations

47. In its communication of February 1996, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) explained that it was set up in 1983 by the workers of the National Institute of Social Services for Pensioners and Retired Workers (PAMI) (according to the complainant, a non-state entity governed by public law), and that it has been requesting recognition for purposes of, inter alia, collective bargaining, since 1985 with no success. The complainant describes in detail the administrative and judicial formalities it has completed since 1985. In particular it states that in 1991 the Ministry refused UTI's request for recognition, pointing to the existence of two other trade unions that were recognized in UTI's sphere of activity. Nevertheless, in February 1992 the judicial authorities expressed the opinion that "the legal nature of the PAMI Institute is an obstacle to its workers being represented by the trade union organizations mentioned in the resolution of the Ministry of Labour and Social Security (UPCN and ATE)". The complainant declares that subsequently, in November 1992, the Ministry of Labour and Social Security stipulated that UTI should be granted recognition, and that in November 1993 the judicial authorities indicated that the Ministry of Labour and Social Security should hand down a decision on its request for recognition. In addition, the complainant states that in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of a total of 11,449 workers at the Institute, 4,437 were members of the complainant, 1,848 of UPCN and 873 of ATE, and that in November 1994 the Legal Technical Department of the National Directorate of Trade Union Associations ruled that UTI should be granted recognition. The complainant points out that the Ministry of Labour has not yet prepared a resolution in this connection and that as UTI still has not been recognized, the workers of the PAMI Institute have no collective agreement and no social security provisions of their own. (The complainant annexes copies of the administrative and judicial resolutions to its complaint.)

B. The Government's reply

48. In its communication dated 15 May 1997, the Government annexes a resolution of the Ministry of Labour and Social Security dated 15 May 1997 concerning the allegations presented by the complainant relating to the refusal to grant recognition to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) for the purposes of, inter alia, collective bargaining. The resolution in question provides in particular the following:

... that the petitioner, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been registered as a trade union association since 25 September 1984 and groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers. It is therefore an enterprise trade union.

That, according to the Report of the Department responsible for the registration of trade union entities, the State Workers' Association (ATE) does not represent the staff of the Institute in question.

That, as regards the Union of State Employees of the Nation (UPCN), this entity has been granted recognition (No. 95) by virtue of Resolution ST and P No. 34/48.

That, by virtue of Resolution MT and SS No. 725 of 3 September 1993, the text of article 1 of the statutes which sets out the geographical area and the persons falling within the scope of this union, has been approved.

That, subsequently, Resolution MT and SS No. 1028 dated 19 December 1996 approved the text of the new statutes and affirmed that "the Union will continue to be recognized for the same geographical area and persons covered ..."

That this union comprises any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels. The granting of recognition to this organization covers the staff of the Institute in question.

That, in analysing the characteristics of the trade union entities in question, and in order to decide on the request to grant recognition for purposes of, inter alia, collective bargaining to the enterprise trade union, it would be appropriate to take into consideration section 29 of Act No. 23551 which stipulates that: "A trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered."

That, in analysing the annexed documentation, the reasons given in the file and the specific characteristics of the employer, it follows that the Union of State Employees of the Nation (UPCN) covers, as regards geographical area and persons covered by its recognition, the workers of the National Institute of Social Services for Pensioners and Retired Workers. Consequently, and very clearly, it would not be appropriate to accede to the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) given that it is a general provision of the Act and not an arbitrary decision by the authorities which prevents the recognition of this entity. Consequently, the Ministry of Labour and Social Security rejects the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI)

C. The Committee's conclusions

49. The Committee observes that the allegations relate to the fact that the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been refused the recognition it has been requesting since 1985 (only trade union organizations which are recognized have, inter alia, the right to collective bargaining and to the administration of social security benefits, i.e. the administration of medical insurance and other social benefits for workers).

50. The Committee observers that the resolution of the Ministry of Labour and Social Security dated 15 May 1997 states that (1) the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) -- the complainant -- groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers and that it is therefore a trade union at the enterprise level; (2) in 1996, the Ministry of Labour and Social Security approved the text of the new statutes of the Union of State Employees of the Nation (UPCN) which has been granted recognition for purposes of, inter alia, collective bargaining. These statutes, which set out the geographical area and the persons falling within the scope of this union, provide in particular that this union encompasses workers "of any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels ..."; (3) section 29 of the Act on trade union associations stipulates that "a trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"; and (4) the UPCN includes, as regards geographical area and persons covered by its recognition, the staff of the National Institute of Social Services for Pensioners and Retired Workers, reason for which recognition was not granted to UTI.

51. The Committee notes that the documentation annexed to the complaint shows that (i) in 1992 the Ministry of Labour and Social Security indicated that recognition should be granted to UTI; (ii) in November 1993 the judicial authorities stipulated that the national Ministry of Labour should hand down a decision on the application for recognition; (iii) in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of the Institute's 11,449 workers, 4,437 were members of UTI (almost 40 per cent of the total), 1,848 of UPC and 873 of ATE; and (iv) the Legal Technical Department of the National Directorate of Trade Union Associations stated that recognition should be granted to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers.

52. This being the case, and taking into account all the administrative resolutions and judicial rulings pertaining to the granting of recognition to the complainant as well as the fact that this organization is clearly the most representative one, which is not refuted by the Government, the Committee urges the Government to take the necessary steps to grant recognition immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI), enabling it to negotiate collectively and exercise the other rights enjoyed by the most representative organizations. In this respect, observing that up to now recognition has been refused by virtue of section 29 of Act No. 23551 on trade union associations, the Committee must draw the Government's attention to the fact that, to the extent that this provision prevents the most representative trade union organizations in an enterprise from bargaining at the enterprise level, it is incompatible with the principles of freedom of association and collective bargaining. Consequently, the Committee further requests the Government to take the necessary measures to ensure that this provision of Act No. 23551 is amended. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

53. Lastly, the Committee deplores the excessive length of time -- more than 11 years -- allowed to elapse before deciding whether or not to grant recognition to a trade union organization. Furthermore, it observes with concern that this is not the first time that it is examining complaints against the Government of Argentina in which there are allegations of excessive delays and red tape in the processing of the registration of a trade union organization or the granting of recognition [see 274th Report, Cases Nos. 1455, 1456, 1496 and 1515, para. 9; 286th Report, Case No. 1551, para. 57; and 306th Report, Case No. 1777, para. 15]. Given this situation, the Committee urges the Government to take measures to ensure that in future, when requests are made for the registration of an organization or the granting of recognition, the competent administrative authorities decide on the matter without unjustified delay.

The Committee's recommendations

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

(a) The Committee urges the Government to take measures to ensure that recognition is granted immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI).

(b) The Committee urges the Government to take the necessary measures to ensure that in future, when an organization requests registration or the granting of recognition, the competent administrative authorities return their decisions without unjustified delay.

(c) The Committee requests the Government to take the necessary measures to ensure that section 29 of the Act on trade union associations is amended. It draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1887

INTERIM REPORT

Complaints against the Government of Argentina
presented by
-- the Tram-drivers' Union (UTA)
-- the Argentine Air Crew Association (AAA)
-- the National Truckers' Federation (FNTOCTAC)
-- the Union of Dredging and Marking Staff (SPEDB)
-- the Argentine Union of Private Teachers (SADOP)
-- the Argentine Federation of Pharmacy Workers (FATF)
-- the Argentine Federation of Printing Workers (FATI)
-- the Union of Employees of Courts of Law (UEJN)
-- the Centre of Overseas Captains and Merchant
Navy Officers (CCUOMM)
-- the Argentine Union of Mill Workers (UOMA)
-- the Association of Medical Advertising Agents of the
Argentine Republic (AAPMRA)
-- the Single Union of Workers in Advertising (SUP)
-- the Centre of Naval Radio Communications Chiefs
and Officers (CJONR)
-- the Association of Underground Supervisory Staff (APSESBA) and
-- the Argentine Television Union (SAT)
Allegations: Restrictions on the right to collective bargaining

55. The complaints in this case are contained in a communication dated 5 June 1996 from the Tram-drivers' Union (UTA), the Argentine Air Crew Association (AAA), the National Truckers' Federation (FNTOCTAC), the Union of Dredging and Marking Staff (SPEDB), the Argentine Union of Private Teachers (SADOP). the Argentine Federation of Pharmacy Workers (FATF), the Argentine Federation of Printing Workers (FATI), the Union of Employees of Courts of Law (UEJN), the Centre of Overseas Captains and Merchant Navy Officers (CCUOMM), the Argentine Union of Mill Workers (UOMA), the Association of Medical Advertising Agents of the Argentine Republic (AAPMRA), the Single Union of Workers in Advertising (SUP), the Centre of Naval Radio Communications Chiefs and Officers (CJONR), the Association of Underground Supervisory Staff (APSESBA), and the Argentine Television Union (SAT). The International Transport Workers Federation (ITF) associated itself with the complaint in a communication dated 4 September 1996. In January 1997 the Tram-drivers' Union (UTA) sent a communication containing new allegations.

56. The Government sent partial observations in communications dated 5 February and 9 May 1997.

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

A. The complainants' allegations

58. In its communication of 5 June 1996, the Tram-drivers' Union (UTA) and the other trade union organizations raise objections to Act No. 24522 on insolvency and bankruptcy which renders collective agreements in force ineffective and makes it compulsory to renegotiate new collective agreements. Specifically, the complainants object to the following sections of Act No. 24522:

Section 20, paragraphs 4, 5, 6 and 7

Labour contracts: The opening of bankruptcy proceedings renders collective agreements in force ineffective for a period of three years, or until the completion of the bankruptcy proceedings, whichever is the shorter.

During that period, labour relations shall be governed by individual contracts and by the Labour Contract Act.

The bankrupt party and the recognized trade union association shall negotiate an emergency collective agreement for the duration of the bankruptcy proceedings, up to a maximum of three years.

The conclusion of the bankruptcy proceedings for any reason, or their interruption sine die, shall put an end to the emergency collective agreement that may have been negotiated, and the corresponding collective agreements shall once again be in force.

Section 198, paragraph 3 (bankruptcy)

Collective labour agreements covering staff employed in the bankrupt establishment or enterprise shall cease to have any legal effect vis-à-vis the new owner and shall be renegotiated by the parties concerned.

59. The trade union organizations explain that in July 1994 a Framework Agreement on Employment, Productivity and Social Equity was signed by the Government, the employers' sector and the General Confederation of Labour (CGT) representing the labour sector, which, inter alia, set out the terms of the current reform of the law on bankruptcy. The complainants state that their representation by the CGT was a formal arrangement and no more, inasmuch as the workers' movement making up this Confederation did not at any time authorize the signatories to subscribe to any such agreement.

60. In its communication of January 1997, the UTA raises objections to the following Executive Decrees: Decree No. 1553/96 empowering the Ministry of Labour to revoke the registration of a collective labour agreement; Decree No. 1554/96 empowering the Ministry of Labour to determine the scope of collective bargaining; and Decree No. 1555/96 containing certain provisions regarding collective bargaining.

B. The Government's reply

61. In a communication dated 5 February 1997, the Government points out that the impugned law (Act No. 24522) is an Act proclaimed by the National Congress in the exercise of its constitutional powers and is based on the Framework Agreement on Employment, Productivity and Social Equity, a tripartite agreement in which the employers' and workers' sectors (through their most representative bodies) agreed with the national Government, inter alia, to undertake a reform of the insolvency and bankruptcy procedures in force in the country and to revise the juridical framework of collective bargaining. The provisions of sections 20 and 198 of Act No. 24522, which are impugned by the complainants, are the outcome of that agreement.

62. The Government states that the reasons behind the said Act are that insolvency and bankruptcy proceedings are exceptional circumstances and that the labour legislation should therefore address them in terms that are sufficiently broad to enable the employer to fulfil his or her obligations, on the one hand, and to help the workers recover the amounts due to them, on the other. Insolvency proceedings should endeavour to facilitate the continued operation of the enterprise and to maintain the workers' jobs. Similarly, in the case of bankruptcy, a purchaser should be sought for the bankrupt establishment or enterprise, essentially to avoid the disappearance of a source of employment. This is particularly important in an economic crisis such as is currently being experienced both internationally and nationally, because of its impact on employment. From the juridical standpoint, both bankruptcy and insolvency proceedings imply a substantial change in the circumstances under which the bankrupt employer entered into his or her original commitments and in the circumstances that prevailed when the collective agreements were concluded and while they remained in force. All these factors justify the revision of the applicable collective agreement. It does not in any way violate international labour Conventions Nos. 87, 98 and 154. Moreover, although section 20 of Act No. 24522 temporarily suspends the collective agreements in force for the reasons indicated (suspension is for a maximum of three years or for the duration of the bankruptcy proceedings, whichever is the shorter), it provides for the bankrupt establishment or enterprise and the recognized trade union to negotiate an emergency collective agreement for the duration of the proceedings, up to a maximum of three years. These agreements are negotiated directly between the trade union and the bankrupt employer, without the involvement of the trade union movement or bankruptcy courts, and leaves the parties considerable discretion. Finally, the Government states that the impugned sections of the Act are designed to protect the worker by facilitating the continued operation of the enterprise and the maintenance of the workers' jobs and, in the worst of cases, to enable to workers to recover the amounts due to them.

63. In its communication of 9 May 1997, the Government notes that the application of Decrees Nos. 1553, 1554 and 1555 has been suspended since they were the subject of a case before the Supreme Court. The Government states that it will be forwarding its observations on this matter shortly.

C. The Committee's conclusions

64. The Committee observes that in this case the complainants raise objections to certain provisions of Act No. 24522 on insolvency and bankruptcy which suspend the collective agreements in force and require the negotiation of new collective agreements. The Committee further notes that the Tram-drivers' Union (UTA) raises objections to Executive Decrees Nos. 1553/96, 1554/96 and 1555/96, on the grounds that they restrict the right to collective bargaining.

65. With regard to the impugned sections of Act No. 24522 on insolvency and bankruptcy, the Committee notes that the Government states in its reply that (i) the employers' and workers' sectors (through their most representative organizations) agreed with the Government to undertake a reform of the insolvency and bankruptcy procedure and that sections 20 and 198 of the said Act were drawn up in line with that agreement; (ii) the reasons behind the Act are that insolvency and bankruptcy proceedings are exceptional circumstances and that labour legislation should therefore address them in terms that are sufficiently broad to enable the employer to fulfil his or her obligations, on the one hand, and to help the workers recover the amounts due to them, on the other; (iii) from the juridical standpoint, both bankruptcy and insolvency proceedings imply a substantial change in the circumstances under which the bankrupt employer entered into his or her original commitments and in the circumstances that prevailed when the collective agreements were concluded; and (iv) although section 20 of the Act temporarily suspends the collective agreements (for a maximum of three years or for the duration of the proceedings, whichever is the shorter) the Act does provide for the possibility of negotiating an emergency collective agreement, without the involvement of the judicial authorities, and leaves the parties considerable discretion.

66. The Committee notes that the Act concerned does indeed provide that (i) in the event of insolvency proceedings (when an enterprise's liabilities are greater than its assets and the employer proposes an agreement with his or her creditors in order to pay his or her debts), a collective agreement for cases of crisis can be negotiated, the previous collective agreements being therefore repealed for three years -- or less if the proceedings are completed before; and (ii) in the case of bankruptcy the collective agreements cease to be in force and may be renegotiated by the parties concerned.

67. The Committee has always considered that collective agreements entered into freely by the parties must be respected and their renegotiation must not be imposed by law. In the present case, however, which refers to insolvency and bankruptcy proceedings, insisting on full compliance with the provisions of the collective agreement might threaten the continued operation of the enterprise and the maintenance of the workers' jobs. Moreover, the Committee notes that, according to the complainants and the Government, the General Confederation of Labour (CGT) -- of which the complainants are members and which is the most representative trade union -- did reach an agreement on the impugned provisions of the Act on insolvency and bankruptcy, although the complainants claim that the CGT did not have a mandate to accept any restrictions. Moreover, the Committee notes that the trade unions concerned can renegotiate the collective agreements which were repealed in a crisis situation. Consequently, the Committee considers that the Act does not violate Convention No. 98.

68. As to the alleged restriction of the right to collective bargaining under Decrees Nos. 1553/96, 1554/96 and 1555/96, the Committee observes that the Government has stated that it will forward its observations on this matter shortly and that the Decrees are suspended and are the subject of proceedings before the Supreme Court. Finally, the Committee requests the complainants to submit additional information regarding these allegations.

The Committee's recommendation

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

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Argentina
presented by
the Union of Education Workers of Río Negro (UNTER)
Allegations: Restrictions on the right to strike,
unilateral termination of collective agreements and
withholding of trade union dues

70. The complaint in this case is contained in a communication from the Union of Education Workers of Río Negro (UNTER) of August 1996. The Government sent its observations in a communication dated 15 April 1997.

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

A. The complainant's allegations

72. In its communication of August 1996, the Union of Education Workers of Río Negro (UNTER) objects to Resolution No. 203/96, issued on 14 February 1996 by the Río Negro Provincial Education Council, concerning the recruitment of teachers to replace striking staff, and Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, regulating direct action by employees of the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant states that the regulations at issue cannot be interpreted without taking into account the situation in law and in practice of provincial public employees, and that of education workers in particular. The complainant adds that public sector workers in Río Negro do not receive their salaries in due time and in the prescribed form, that there are delays in payment of up to six months, in addition to which they suffer the consequences of structural adjustment programmes, which have affected teachers as follows: teaching hours have been cut, over 1,500 teachers have lost their jobs, grades have been eliminated and schools closed, etc.

73. Specifically, the Resolution and Decrees at issue contain the following provisions:

Resolution No. 203/96 of the Provincial Education Council

CONSIDERING the possibility of direct action being taken by decision of teaching staff, and WHEREAS the continuity of educational services must be ensured; a political decision has been taken to recruit persons wishing to provide teaching services to replace those who may take part in the direct action; there are a large number of persons with professional and equivalent qualifications who are able to take on teaching hours and/or grades; in order to fill posts which would otherwise be unattended it is necessary to recruit persons voluntarily expressing the wish to work in the education sector: THE PROVINCIAL EDUCATION COUNCIL HEREBY RESOLVES THE FOLLOWING:

Section 1. The registration of volunteers to provide teaching services in each regional department shall be authorized.

Section 2. The following may register as volunteers: retired teachers, persons with professional and equivalent qualifications who shall be appointed to fill teaching posts in accordance with the basic principles laid down in the present resolution ...

Decree No. 222/96

THE GOVERNOR OF THE PROVINCE OF RÍO NEGRO HEREBY DECREES THAT:

Section 1. The direct action which may be taken by employees of the public administration, decentralized bodies and autonomous bodies of the provincial Executive shall be governed by the provisions of the present Decree.

Section 2. The decision to take direct action shall be adopted by the executive bodies of recognized trade union organizations, in accordance with the procedure laid down in the by-laws of each trade union organization. Where there is no provision to this effect in the by-laws, the measure shall be approved by the provincial executive of the trade union.

Section 3. A trade union organization that has decided to take direct action shall, with at least three days' notice, formally communicate this decision to the provincial Undersecretariat for Labour, which shall verify compliance with the provisions laid down in section 2 of this Decree. In the notification made to the Undersecretariat for Labour, the trade union organization shall communicate the nature and/or form of the action envisaged, its duration, the sectors of the public administration affected, the reason, the trade union body which took the decision and a certified copy of the record of such decision.

Section 4. Within 24 hours of receiving the communication referred to in the preceding section, the Undersecretariat for Labour may decide to hold the necessary hearings to examine the reasons for the direct action. Where the Undersecretariat for Labour decides to hold hearings, attendance shall be mandatory for those persons who have been formally notified.

Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree.

Section 6. Where workers fail to carry out all or part of their service, by reason of direct action, whether such action has been formally decided upon or not, and whether or not they are present at the workplace, and where they fail to place themselves at the disposal of the authorities of the central public administration bodies, autonomous bodies or decentralized bodies of the provincial state, in order to carry out their tasks, and consequently could not engage in the work assigned to them, they shall not be paid any remuneration.

Section 7. Non-compliance by the trade union organizations covered by the provisions of this Decree shall result in the case being referred to the Ministry of Labour and Social Security of the Nation, with a request to order the suspension of the trade union's registration or legal personality.

Section 8. The Ministry of the Interior, Labour and Social Affairs shall be the competent authority to apply the provisions of this Decree and may issue the necessary supplementary regulations to ensure that it is implemented in the best possible manner.

Decree No. 329/96

CONSIDERING Decree No. 222/96; and WHEREAS section 5 thereof, referring to the legal consequences of non-compliance with the obligations laid down in it, omitted to mention that the first effect is the declaration that the direct action ordered contrary to the provisions of the above-mentioned Decree shall be declared illegal, which the body responsible for the implementation of the Decree is empowered to do, THE GOVERNOR OF THE PROVINCE OF RÍO NEGRO HEREBY DECREES THAT:

Section 1. Section 5 of Decree No. 222 of 28 February 1996 shall be amended to read as follows: "Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail, in addition to the action being declared illegal, the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree."

74. The complainant states further that on 6 June 1996 the provincial Undersecretariat for Labour informed UNTER of a notification received from the Provincial Education Council (CPE) in which the employer denounced all the collective agreements that had been signed and approved, the reasons given being that the agreements that had been approved failed to stipulate the term of the agreement; changes in circumstances; and the fact that the collegiate body had not endorsed the agreements. The complainant adds that after denouncing the agreements, the CPE issued resolutions concerning the conditions of work of teachers for which provision had been made in the collective agreements (substantial changes in hours of work, elimination of the monthly time off granted to delegates to attend trade union meetings, authorization to hire teachers under fixed-term and part-time contracts, suspension of payment of remuneration for trade union leave, etc.).

75. Lastly, the complainant alleges that the government of Río Negro province deducts a percentage of wages corresponding to the union dues of UNTER members, but does not transfer it to the trade union's account, and that only part of the dues for the month of February 1996 have been paid over.

B. The Government's reply

76. In its communication dated 15 April 1997 the Government states that provincial Decrees Nos. 203/96 and 222/96 do not involve any violation of the constitutional right to strike or of the international Conventions on freedom of association. These regulations are a part of the legislative framework governing the right to strike in the provincial administration of Río Negro which only lays down the following prior conciliation procedure: (a) a decision to take direct action must be adopted by the executives of recognized trade unions, in accordance with their by-laws; (b) the trade union shall send formal notification, with at least three days' notice, to the provincial Undersecretariat for Labour; and (c) within 24 hours of receiving such notification the above-mentioned Undersecretariat may decide to hold hearings to examine the reasons for taking the direct action. The Government adds that where the direct action was not formally decided by a legally recognized trade union in accordance with its by-laws or, where there is no such provision in its by-laws, with the approval of the provincial executive of the trade union, the legal consequence shall be that the direct action shall be declared illegal and applicable disciplinary sanctions under the regulations governing provincial public employees shall be adopted. This is a simple case of failure to provide services that is not protected by the right to strike and that entails the applicable sanctions, which shall not be applied in the case of direct action taken in accordance with the law. The Government states that it is clear from the above and from a close examination of the provincial Decrees at issue that the latter simply regulate the right to strike and cannot be deemed to restrict this right. The rights and guarantees laid down in the national Constitution must be exercised in accordance with the laws regulating the exercise thereof, which is what the above-mentioned provisions do.

77. The Government states that Resolution No. 203/96 of the Provincial Education Council is intended to guarantee the constitutional right to education in the event of a teachers' strike for an unspecified period or prolonged duration and, contrary to the statement made by UNTER, does not involve any change in the conditions of recruitment of teachers, since persons holding posts in accordance with the regulations are not removed from their posts, but replaced while they take part in a strike until they resume their activity. The Government emphasizes that this measure cannot in any way be considered as an unfair practice under Act No. 23551, since it is not clear of what the reprisal, change in working conditions or discriminatory treatment consists. Moreover, this resolution was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels and, according to the government of the Río Negro province, has not been applied to date.

78. Concerning the allegation regarding the Río Negro province's handling of teachers' collective agreements, the Government adds that "denunciation" is a form of termination of agreements. The Government states that there has been a change in the social and economic situation throughout the country, and in Río Negro province in particular, since the collective agreement was approved, amounting to a change of circumstances which, in accordance with the doctrine, constitutes grounds for terminating an agreement. The Government points out that since the Provincial Education Council, a state agency which is a member of a collegiate body, is a party to the agreement, in order for it to sign the agreement the endorsement of the collegiate body is required, unless authority has expressly been delegated, which was not the case. This was the ruling handed down by the Second District Labour Court of Río Negro province, the competent court in this case, which declared null and void the act performed by the president of the Provincial Education Council without the endorsement of the collegiate body. Lastly, the Government states that many provinces are now beset by major financial crises which have prevented them from regularly meeting their commitments under the obligations they have assumed, and that in this emergency context and in view of the impossibility of meeting all its financial commitments on time, Río Negro province had established a payments schedule giving priority to public sector remuneration, including teachers' salaries, which are paid at regular intervals (monthly).

C. The Committee's conclusions

79. The Committee notes that in this case the complainant objects to a Resolution issued by the Education Council of Río Negro province providing for the possibility of recruiting teachers to replace striking staff and to Decrees issued by the Executive of Río Negro province governing the exercise of the right to strike of employees in the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant alleges further that the employer -- the Education Council of Río Negro province -- denounced or unilaterally terminated the collective agreements for teachers in the public sector and that the trade union dues deducted from the wages of members of the UNTER trade union by the government of Río Negro province had not been paid to the trade union.

80. Concerning Resolution No. 203/96 of the Education Council of Río Negro province, challenged by the complainant, which authorizes the recruitment of teachers in the public sector to replace striking staff, the Committee notes that the Government states that (i) it is intended to guarantee the constitutional right to education in the event of a teachers' strike for an indefinite period or prolonged duration; (ii) it does not involve a change in the conditions of recruitment of teachers, since those holding posts in accordance with regulations are not removed, but are replaced while they take part in a strike until they resume their activity; (iii) this cannot be considered as an unfair practice under Act No. 23551 respecting trade union associations; (iv) it was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels; and (v) it had not been applied to date.

81. In this respect, the Committee observes that the legal framework governing strikes in Argentina provides for the possibility of imposing a minimum service in the event of a strike in the education sector (Decree No. 2184/90, section 1) which is in conformity with the principles of freedom of association. However, the Committee notes that Resolution No. 203/96 adds to this possibility of imposing a minimum service that of temporarily replacing strikers with other workers. In this respect, the Committee emphasizes that "the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 570]. The Committee accordingly requests the Government to take the necessary steps to repeal Resolution No. 203/96 issued by the Education Council of Río Negro province.

82. As regards Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, the Committee observes that they essentially provide for a prior conciliation procedure and non-payment of salaries during a strike.

83. The Committee observes that these provisions of the Decrees at issue do not violate the principles of freedom of association [see Digest, op. cit., paras. 500, 502 and 588]. None the less, the Committee observes that in cases in which a strike in the public service was not decided in conformity with the provisions of the Decrees, it may be declared illegal by the Ministry of the Interior, Labour and Social Affairs, and that sanctions may be applied, such as termination of the employment relationship or suspension of registration of a trade union or of its legal personality. In this respect, the Committee recalls that it has already had occasion to examine a complaint against the Government of Argentina concerning the power of the Ministry of Labour to declare strikes illegal [see 292nd Report, Case No. 1679 (Argentina), para. 95]. The Committee accordingly reiterates its previous conclusions to the effect that "the final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute" [see Digest, op. cit., para. 523]. In these circumstances, the Committee requests the Government to take steps to amend the Decrees in question so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.

84. As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province, the Committee observes that these measures were taken unilaterally and by decision of the President of the Education Council of Río Negro province (CEP), without being endorsed by the CEP, which was challenged by the judicial authority. The Committee notes that the Government justifies these measures stating that there has been a change in the social and economic reality throughout the country and in the Río Negro province in particular since the collective agreements came into force (a change in circumstances as grounds for termination of the agreements). In this respect, the Committee recalls that "the suspension or derogation by decree -- without the agreement of the parties -- of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If the Government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations" [see Digest, op. cit., para. 876]. The Committee observes that in this case the administrative authority did not act by decree, but simply notified the parties of the denunciation of the collective agreements in force, which has a comparable effect. In these circumstances, while it deplores the fact that the President of the CEP did not respect the agreements freely entered into by the parties and that there has been no attempt to persuade the complainant organization to take account of economic changes that have occurred, the Committee requests the Government to ensure that the Education Council of Río Negro province (CEP) respects the collective agreements that have been concluded and avails itself of legal procedures if it wishes to renegotiate such agreements.

85. As regards the allegation concerning the failure to pay the UNTER trade union the dues deducted from the salaries of its affiliates since the month of February 1996 by the government of Río Negro province, the Committee regrets that the Government has not communicated its observations on this matter. In this respect, the Committee observes that national legislation (Act No. 23551, section 38, subsection 1) lays down an obligation to deduct trade union dues for trade union organizations with legal personality (the most representative organizations). In these circumstances, recalling that non-payment of trade union dues can result in serious financial difficulties for trade union organizations, the Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues of its members which have been withheld since February 1996 and to keep it informed of developments in this respect.

86. Lastly, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

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

(a) The Committee requests the Government to take the necessary steps to repeal Resolution No. 203/96, issued by the Education Council of Río Negro province, allowing workers to be hired during a teachers' strike.

(b) Recalling that the final decision concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute, the Committee requests the Government to take steps to amend Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.

(c) As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province by unilateral decision of the President of the Education Council of Río Negro province (CEP), the Committee requests the Government to ensure that the CEP respect the collective agreements that have been concluded and avail itself of the legal procedures if it wishes to renegotiate such agreements.

(d) The Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues paid by its members which have been withheld since February 1996 and to keep it informed of developments in this respect.

(e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

Case No. 1873

INTERIM REPORT

Complaint against the Government of Barbados
presented by
the National Union of Public Sector Workers (NUPW)
Allegations: Restrictions on collective bargaining in the public sector

88. In a communication dated 7 March 1996, the National Union of Public Sector Workers (NUPW) submitted a complaint of violations of freedom of association against the Government of Barbados. The Public Service International supported the complaint in a communication dated 29 March 1996. The Government sent its observations in a communication dated 27 May 1997.

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

A. The complainant's allegations

90. In its communication of 7 March 1996, the NUPW alleges that the Government of Barbados has departed from any established collective bargaining practices by unilaterally imposing pay increases on the majority of public workers.

91. According to the NUPW, it submitted by letter dated 5 May 1995, comprehensive proposals for increased pay, the payment of a productivity bonus and improved employment conditions to form the basis for negotiations for a collective agreement. The NUPW alleges that after four meetings (30 June 1995; 14 July 1995; 6 December 1995; and 26 January 1996), the Government proceeded to the House of Assembly and unilaterally imposed pay increases on the majority of public workers. According to the NUPW, the Government's various excuses for the reprehensible action included:

92. The NUPW further alleges that although there are six other workers' organizations that have accreditation as bargaining bodies, the complainant's membership is substantially larger than the combined membership of the other organizations and that they transcend more categories of workers.

93. Finally, the NUPW claims that the Government's persistent refusal to genuinely discuss the merits or otherwise of a productivity bonus is contrary to the provisions of two Protocols on Pay and Prices (section 3(e) of 1991-93 Protocol and section 3(f) of 1995-97 Protocol).

B. The Government's reply

94. In a communication dated 27 May 1997, the Government indicates that contrary to the complainant's claim, the Government did reach an agreement with a majority of trade union bodies representing the majority of civil servants.

95. As far as the allegations of the Government's refusal to genuinely discuss the merits or otherwise of a productivity bonus are concerned, the Government indicates that after having reached an agreement with the social partner for the period 1993-95, in April 1995, continued fragile economic conditions dictated that the social partners enter into a second protocol for the implementation of a prices and income policy (1995 to 1997) to succeed the one which expired in March 1995. After these negotiations, a second protocol was signed for the period 1995-97 in which increases, including a productivity bonus, were granted and accepted by the majority of trade union bodies representing the majority of civil servants.

96. Finally, the Government indicates that it did not act in bad faith nor in a manner contrary to the protocol and that it could not pay the members of the complainant at one rate and members of the umbrella body of trade unions at another rate.

C. The Committee's conclusions

97. The Committee notes that the allegations in this case refer to restrictions on collective bargaining in the public sector by the Government which imposed unilaterally a new wage plan on the majority of public workers.

98. The Committee first would like to recall the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations as well as the importance to make every effort to reach an agreement [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 814]. The Committee is 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 the period of duration of collective agreements in the public sector does not always coincide with the duration of budgetary laws. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants [see Digest, op. cit., para. 899].

99. In this respect, the Committee notes that before proceeding to the House of Assembly and imposing a new wage plan on the public workers, the Government had four meetings with the complainant organization over a period of seven months. Furthermore, the Committee notes that the Government had reached an agreement with six other workers' organizations. While the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement [see Digest op. cit., para. 817]. Therefore, the Committee cannot conclude from the allegations at hand that the Government had refused collective bargaining altogether, nor can it see that the Government had negotiated in deliberate bad faith.

100. With regard to the allegation that a minority agreement between the Government and other public sector bargaining bodies was imposed on the general public services, this raises the question of the recognition of the most representative organizations in an industrial relations system, according to which the negotiating agent representing the most representative trade unions has a priority with regard to collective bargaining. While the NUPW claims that its membership is larger than the other workers' organizations that have accreditation as bargaining bodies, the Government seems to claim that the NUPW's membership constitutes a minority of the public workers. Concerning this aspect of the case, the Committee recalls that the competent authorities should, in all cases, be able to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. Therefore, since there seems to be a fundamental disagreement on this issue between the complainant organization and the Government, the Committee considers that the Government should proceed to such a verification as to whether or not the NUPW represents the majority of the workers in the public sector. The Committee requests the Government to send it the results of this verification.

The Committee's recommendations

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

(a)Recalling the importance it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations, the Committee reminds the parties to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants.

(b)The Committee requests the Government to proceed to an objective verification of the claim by the NUPW that it represents the majority of the workers in the public sector in Barbados, and to send it the results of this verification.

Case No. 1850

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Congo
presented by
the Trade Union Confederation of Workers of Congo (CSTC)

Allegations: Anti-union intimidation, banning of trade union meetings,
restrictions on the right to strike

102. The Committee examined this case at its June 1996 meeting [see 304th Report, paras. 199-220, approved by the Governing Body at its 266th Session (May-June 1996)], during which it formulated interim conclusions.

103. The Government sent observations on this case in a communication dated 5 March 1997.

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

A. Previous examination of the case

105. In its communication of 19 August 1995 the Trade Union Confederation of Workers of Congo (CSTC) had stated that the Government was violating trade union rights. Specifically, it made the following allegations:

106. At its June 1996 meeting, the Committee expressed its regret at the Government's failure to send any reply concerning this case despite the fact that the Committee had invited it to do so on several occasions, even by way of an urgent appeal. The Committee had therefore found itself obliged to submit a report on the substance of the case without being able to take into account the information that it had hoped to receive from the Government.

107. In view of this situation the Committee had adopted the following recommendations:

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

(a) With regard to the alleged violent dispersion of a trade union meeting at Pointe Noire, the Committee calls on the Government to arrange without delay for an impartial and independent inquiry to clarify the facts and avoid the repetition of such acts, and to keep it informed of the findings of the inquiry.

(b) With regard to the alleged expulsion of the president of the CSTC, Mr. Louis Gondou, from Pointe Noire and the ban on his returning, the Committee calls on the Government to revoke these measures which constitute a serious interference in the activities of the trade union organization of which he is president and to arrange for a judicial inquiry into the truth of the allegations. The Committee requests the Government to keep it informed of the findings of this inquiry and of developments in the situation.

(c) With regard to the alleged expulsion of the CSTC from its premises and the ransacking of its property and documents in July 1995, the Committee calls on the Government to arrange for an independent inquiry and, should the allegation prove true, to return its premises and property to this workers' organization and to sanction the perpetrators of these illegal acts so that such inadmissible practices do not recur. It requests the Government to keep it informed of the steps taken in this respect and of the findings of the inquiry.

(d) With regard to the banning of trade union activities on 27 July and 12 August 1995, the Committee requests the Government to communicate its comments and observations on this aspect of the case.

(e) With regard to the alleged threats of dissolution and suspension of the CSTC, the Committee recalls that the suspension or dissolution of workers' organizations by administrative authority is contrary to Article 4 of Convention No. 87 and urges the Government not to resort to such action.

(f) With regard to the alleged repression practised against striking workers, the Committee emphasizes that protest strikes against the non-payment of remuneration and sympathy strikes with the workers concerned are legitimate trade union activities, and calls on the Government to revoke all anti-union reprisals that may have been taken in the public sector, including the 8 March 1995 order of the Council of Ministers, and to take the necessary steps to enable the leaders and the members of trade union organizations who have been dismissed for legitimate trade union activities to be reinstated in their jobs.

(g) The Committee recalls that blacklisting constitutes a serious threat to the free exercise of trade union rights and requests the Government to communicate its comments and observations on the allegation that such practices have been engaged in against striking workers.

(h) Finally, with regard to the draft amendment of the legislation on the right to strike in the public service, the Committee calls on the Government to take into account the principles of freedom of association in any amendment of the legislation on this subject and suggests that it communicate the Bill to the ILO prior to its adoption so as to ensure that its provisions do not run counter to these principles. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in respect of Convention No. 87.

B. The Government's reply

108. With respect to a trade union meeting being broken up at Pointe Noire on 30 September 1993 by a detachment of the national police force, in its communication dated 5 March 1997 the Government replies that it is aware of the gravity of this allegation and accepts, in accordance with the conclusions of the Committee on Freedom of Association, to arrange for an impartial and independent inquiry to clarify the facts and avoid their repetition.

109. Concerning the allegation that the president of the Trade Union Confederation of Workers of Congo, Louis Gondou, had been expelled from Pointe Noire by the Public Prosecutor and banned from returning, and the threats directed against the vice-president, Mr. Lobe, the Government explains that, in accordance with articles 129 et seq. of the Constitution of the Republic of Congo, the judiciary enjoys autonomy of action, the Constitution having established the separation of powers. In this particular case, it appears that Mr. Louis Gondou, the president of the CSTC, on a trade union assignment in Pointe Noire, had some exchanges with the police who accuse him of making untrue statements. This being the case, the Public Prosecutor, by virtue of the powers vested in him by the law and prevailing legislation, took the decision to expel Mr. Louis Gondou from Pointe Noire and ban him from returning. It is true that this decision could have taken the form of a decision handed down by a legally constituted court, in which case the president of the CSTC may have been able to present his defence. The Government notes, however, that this matter falls exclusively within the competence of the judiciary, which is why Mr. Louis Gondou has been applying to the courts to seek the annulment of that decision. The Government maintains that it is not responsible for events opposing a citizen and the law of his country. However, it takes careful note of the Committee's recommendations and will keep it informed of the measures taken and results obtained. As for the vice-president of the Trade Union Confederation of Workers of Congo, Mr. Moïse Lobe, he has entire freedom of movement and is going about his trade union activities in an entirely normal fashion.

110. Regarding the question of the CSTC being expelled from its premises, the Government explains that the premises belonged in fact to the Masonic Lodge. During the single party era the State had dispossessed the Freemasons, who held the property title, of the Lodge; following the return of pluralism they asked for their rights to be re-established. The property and documents of the Trade Union Confederation of Workers of Congo were in fact not ransacked at all, but instead a legal decision was executed and the premises restored to their former owner.

111. Pertaining to the banning of the Koulounda public meetings in Brazzaville on 27 July and 12 August 1995, the Government stresses that this decision was taken in order to avoid disturbances and events getting out of control in one of the most working-class districts of the capital. Available information indicated an atmosphere of unrest due to the presence of armed, uncontrolled persons. The Government acknowledges that it could have acted differently if the demonstrations had been scheduled somewhere offering full guarantees of security. However, no other proposal had been received from the Trade Union Confederation of Workers of Congo.

112. As regards the threats of dissolution and suspension levelled at the Trade Union Confederation of Workers of Congo, the Government notes that the complainant organization does not provide any specific details. It confirms its commitment to the principles contained in Convention No. 87. It states however that it brought to the attention of the Trade Union Confederation of Workers of Congo the obligation to respect legal procedures and the freedom to work on a number of occasions during the general strikes called by that organization in 1995.

113. In relation to restrictions on the exercise of the right to strike, the Government explains that the strikes called by the Trade Union Confederation of Workers of Congo often took place in violation of established procedures. They were held when negotiations had not been exhausted; in the public sector, for example, negotiations continued with the other trade union organizations, it was only the Trade Union Confederation of Workers of Congo that withdrew; in the private sector, more particularly in business, strikes often went hand in hand with assault, sit-ins, intimidation and threats directed at non-strikers. Certain employers had requested police support to guarantee freedom of work rather than to suppress strikers, with a view to ensuring the protection of tools and the safety of all, non-strikers in particular. The Government declares that it knows of no placing of striking workers on blacklists, no arbitrary posting of trade union leaders and militants, and no arbitrary dismissals during the general strike of January 1995. Likewise, there had been no ruling by the Council of Ministers dated 8 March 1995 authorizing the payment of salaries only to officials actually present at their workplaces. At that time, the Government had simply recalled that the strike of the Trade Union Confederation of Workers of Congo was clearly illegal (as the negotiations had not deteriorated and were continuing with the other trade unions), and that a deduction would be made from the salaries of all officials absent from their workplaces.

114. Lastly, with reference to legislation on the right to strike in the public service, the Government acknowledges that a bill is currently being examined. It confirms that it will communicate it to the ILO prior to its definitive adoption.

C. The Committee's conclusions

115. The Committee notes the detailed information and observations provided by the Government on each of its recommendations. It observes in particular, in relation to the dispersion of a trade union meeting at Pointe Noire on 30 September 1993 by a detachment of the police force, that the Government is aware of the gravity of the allegation and that it will arrange for an impartial and independent inquiry to clarify the facts and avoid their repetition.

116. The Committee recalls that, according to the CSTC, the trade union meeting on 30 September 1993 had been held at the labour exchange and that the intervention of the police had resulted in many people being wounded, including Mr. Ngakoya, an employee of the national railways. The Committee emphasizes the importance of the principle that the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and that the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 130]. In this particular case, as the trade union meeting was being held at the labour exchange, the Committee is of the view that the authorities should have refrained from any intervention by the forces of order, especially given tha