ILO Home

...ILO LOGO...

INTERNATIONAL LABOUR OFFICE 

Governing Body 

GB.270/7
270th Session
Geneva, November 1997

SEVENTH ITEM ON THE AGENDA

308th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1934 (Cambodia): Interim report

The Committee's recommendations

Case No. 1900 (Canada): Report in which the Committee requests to bekept informed of developments

The Committee's recommendations

Case No. 1917 (Comoros): Definitive report

The Committee's recommendation

Case No. 1923 (Croatia): Report in which the Committee requests to bekept informed of developments

The Committee's recommendations

Case No. 1805 (Cuba): Definitive report

The Committee's recommendations

Case No. 1911 (Ecuador): Definitive report

The Committee's recommendations

Case No. 1915 (Ecuador): Definitive report

The Committee's recommendation

Case No. 1919 (Spain): Definitive report

The Committee's recommendations

Case No. 1888 (Ethiopia): Interim report

Complaint against the Government of Ethiopia presented by Education International (EI) and the Ethiopian Teachers' Association (ETA)
The Committee's conclusions

The Committee's recommendations

Case No. 1908 (Ethiopia): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Cases Nos. 1512, 1539 and 1876 (Guatemala): Interim report

The Committee's recommendations

Case No. 1892 (Guatemala): Definitive report

The Committee's recommendation

Case No. 1773 (Indonesia): Interim report

The Committee's recommendations

Case No. 1897 (Japan): Definitive report

The Committee's recommendations

Case No. 1869 (Latvia): Interim report

The Committee's recommendations

Case No. 1920 (Lebanon): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1894 (Mauritania): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1927 (Mexico): Interim report

The Committee's recommendations

Case No. 1921 (Niger): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1880 (Peru): Interim report

The Committee's recommendations

Case No. 1906 (Peru): Interim report

The Committee's recommendations

Case No. 1926 (Peru): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1914 (Philippines): Interim report

The Committee's recommendations

Case No. 1895 (Venezuela): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1902 (Venezuela): 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 6, 7 and 14 November 1997, under the chairmanship of Professor Max Rood.

2. The members of Japanese and Mexican nationalities were not present during the examination of the cases relating to Japan (Case No. 1897) and Mexico (Case No. 1927), respectively.

* * *

3. Currently, there are 59 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 27 cases on the merits, reaching definitive conclusions in 18 cases and interim conclusions in 9 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. 1929 (France/Guiana), 1930 (China), 1931 (Panama), 1932 (Panama), 1933 (Denmark), 1935 (Nigeria), 1936 (Guatemala), 1939 (Argentina), 1940 (Mauritius), 1941 (Chile) and 1942 (China/Special Administrative Region (Hong Kong)) because it is awaiting information and observations from the governments concerned. In Cases Nos. 1929 (France/Guiana), 1931 (Panama) and 1933 (Denmark), the governments have announced that their observations will be sent shortly. 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. 1812 (Venezuela), 1852 (United Kingdom), 1867 (Argentina), 1873 (Barbados), 1884 (Swaziland) and 1928 (Canada/Manitoba). In Case No. 1852 (United Kingdom), the Government indicated that it was not yet in a position to provide additional information, but that it would communicate a full and detailed reply following a public consultation on the problems linked to the labour legislation. In Case No. 1867 (Argentina), the Government has stated that it will be forwarding its observations shortly. In Case No. 1873 (Barbados), the Government requested additional time for providing its reply. In Case No. 1912 (United Kingdom/Isle of Man), for which the Committee has already received information sent by the Government in two different communications, the Committee requested the Office to ask the Government for additional specific information.

Observations requested from complainants

6. In Cases Nos. 1828 (Venezuela) and 1913 (Panama), the Committee is still awaiting the comments of the complainants. The Committee requests these organizations to send the observations and information requested without delay.

Partial information received from governments

7. In Cases Nos. 1787 (Colombia), 1835 (Czech Republic), 1916 (Colombia) and 1925 (Colombia), 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. 1865 (Republic of Korea), 1887 (Argentina), 1924 (Argentina), 1937 (Zimbabwe) and 1938 (Croatia), the Committee has very recently received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeal

9. As regards Case No. 1843 (Sudan), the Committee observes that, despite the time which has elapsed since the last examination of this case, it has not received the Government's observations. The Committee draws the attention of the Government of Sudan 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 this case, if its observations or information have not been received in due time. The Committee accordingly requests the Government to transmit its observations or information as a matter of urgency.

* * *

Missions

10. In Cases Nos. 1851 and 1922 (Djibouti), in a communication dated 30 August 1997, the Government thanked the ILO for its availability and expressed its desire that the direct contacts mission take place at the beginning of next year.

11. In Case No. 1865 (Republic of Korea), the Government indicated, in its communication dated 15 October 1997, that it agrees in principle to a visit from a high-level tripartite mission. The second half of 1997, however, is not appropriate for such a visit due to the internal situation. The Government has the intention of continuing its consultations with the Office so that the mission can take place during the first half of next year.

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: Canada (Ontario) (Case No. 1900), Croatia (Case No. 1923), Indonesia (Case No. 1773), Niger (Case No. 1921) and Venezuela (Case No. 1902).

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

Case No. 1777 (Argentina)

13. When examining this case with regard to the refusal to register the Congress of Workers as a trade union at its meeting of March 1997, the Committee urged the Government to take the necessary measures to carry out the immediate registration of the CTA (Congress of Argentine Workers) as a union [see 306th Report, para. 15]. In its communication dated 29 May 1997, the Government indicates that under resolution No. 325, dated 27 May 1997, the Ministry of Labour and Social Security granted union registration under its new name to the Central of Argentine Workers (CTA). The Committee notes with satisfaction the Government's statement in this connection.

Case No. 1899 (Argentina)

14. The Committee examined this case at its June 1997 meeting [see 307th Report, paras. 70-87, approved by the Governing Body at its 269th Session (June 1997)], when it requested 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; and 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.

15. In a communication dated 1 October 1997, the Government states that the Río Negro Provincial Education Council repealed resolution No. 203/96, which had been criticized by the Committee, by resolution No. 1304/97. As regards the delay in paying UNTER the union dues paid by its members which had been withheld since February 1996, the Government states further that the original debt when the new authorities of Río Negro Province took office in December 1995 amounted to $637,647.16, that payment had been delayed about four months, and that the debt currently owed could be broken down as follows: (1) $196,207.82 in dues paid for 1996, to be settled by the General Treasury; and (2) $56,107.70 in dues corresponding to SAC, for the first half of 1997 (the only debt owed for the current year).

16. The Committee notes with satisfaction the repeal of resolution No. 203/96 of the Education Council of Río Negro Province. As regards the withholding of trade union dues paid by UNTER members, the Committee notes the information provided by the Government and in particular the fact that it recognizes the existence of a debt to UNTER amounting to 252,315.52 pesos (equal to the same amount in United States dollars). In this respect, recalling that non-payment of trade union dues can result in serious financial difficulties for trade union organizations, the Committee again urges the Government to take the necessary steps 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, according to a reasonable timetable drawn up in consultation with this trade union organization.

Case No. 1862 (Bangladesh)

17. The Committee examined the substance of this case at its May 1996 and March 1997 meetings [see 304th Report, paras. 57-96; 306th Report, paras. 70-120]. When it last examined this case, the Committee requested the Government to:

18. In a communication of 9 July 1997, the Bangladesh Independent Garment Workers' Union Federation (BIGUF) informs the Committee that on 2 July 1997, BIGUF was officially registered by the Registrar of Trade Unions under the Ministry of Labour and Manpower, and notes that BIGUF includes affiliated local unions in the Dhaka and Chittagong regions. The Committee notes this information with interest.

19. In a communication of 17 May 1997, the Government states that a thorough inquiry was held into the matters raised by the complainants. Regarding the findings of the inquiry into the alleged attempts to discredit 11 BIGU members at the Palmal Knitwear Factory Ltd., the Government states that there was no person named Mr. Hasan Ali in the packing section, that Messrs. Nurul Islam and Shahidul Islam voluntarily resigned and are now working in other factories, and Mr. Mohosin Reza also resigned voluntarily. The Government states further that the allegations that Mr. Shamin Reza Pinu, General Manager of the Palmal Group of Companies, threatened BIGU members with transfer, has not been proved.

20. While noting the information provided by the Government, the Committee requests further information regarding the nature of the inquiries and details regarding the findings. The Committee notes with regret that the Government has not provided any information regarding the outcome of the inquiry into the other allegations raised and requests it to do so without delay.

21. In a communication dated 26 October 1997, the Government asserts that pursuant to section 3 of the Industrial Relations Ordinance, 1969, workers and employers have been granted the right to establish and join organizations of their own choosing without prior authorization. While there are no formalities or requirements to form an association, the Government notes that certain requirements must be met where an association desires to be registered as a trade union. On this point, the Committee reiterates that the membership requirement under the Industrial Relations Ordinance of 30 per cent of the total number of workers employed in an establishment or group of establishments concerned in order for a union to be registered, and permitting dissolution if membership falls below that level (sections 7(2) and 10(1)(g) respectively) are not consistent with the principles of freedom of association. The Committee again urges the Government to amend its legislation in this regard.

22. Regarding the granting of registration to the newly formed union at Saladin Garments Ltd., the Government in its communications of 26 October states that the proposed trade union applied for registration and the application was rejected by the Registrar. The trade union then appealed this decision, and the case is still pending in the Labour Court. Noting this information, the Committee repeats its recommendation that the Government take the necessary steps to ensure that the union is granted registration so as to enable it to exercise legitimate trade union activities, and requests the Government to keep the Committee informed in this regard.

23. Finally, on the issue of the need to open a genuinely independent judicial inquiry into the allegations of violations of trade union rights concerning Saladin Garments Ltd., the Government in its communication of 26 October states that all the complainants are working in their respective fields peacefully and one of the complainants, Mr. Chand Mia, has stated in writing that he did not make any allegation that he was tortured. The Committee requests further information regarding the nature of the inquiries and the findings. The Committee also requests the Government to provide the information requested in the other recommendations presented by the Committee.

Case No. 1849 (Belarus)

24. During its last examination of this case at its meeting in March 1997, the Committee once again requested the Government to: repeal Order No. 158 of 28 March 1995 to the extent it includes organizations and enterprises not providing essential services as defined by the Committee; implement fully the decision of the Constitutional Court which declared certain articles of Decree No. 336 to be unconstitutional; take the necessary measures, without delay, to ensure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995; immediately set up an independent commission of inquiry to clarify all the facts relating to this case and to keep it informed of the conclusions reached by the Procurator of the Republic and the commission of inquiry in this regard [see 306th Report, paras. 19-25].

25. The Committee notes with interest that an ILO advisory mission undertaken by Ms. Karen Curtis, Senior Legal Officer of the Freedom of Association Branch, took place from 6-10 October 1997 at the request of the Government to estimate the present situation with respect to essential services and to provide the necessary assistance in this regard. The Committee notes that meetings were held in this regard with officials from the Ministry of Labour, as well as representatives from the workers' and employers' organizations. In a communication to the Office dated 15 October 1997, the Government indicated that the list of enterprises where work stoppages could endanger the life and health of the population was being discussed by all the ministries concerned. The consolidated comments on this matter are to be examined by the National Soviet on labour relations at the end of October -- early November 1997. The Committee therefore expresses the firm hope that the Government will be in a position in the very near future to take the necessary measures to amend Order No. 158 so as to ensure that strikes are only prohibited in essential services in the strict sense of the term. It requests the Government to keep it informed on the progress made in this regard.

26. As concerns sections 1-3 of the Presidential Decree No. 336 which suspend the activities of the Free Trade Unions of Belarus, the Committee notes with regret that, from the information given to the mission by the Free Trade Unions of Belarus, a Presidential Order No. 259 dated 29 December 1995, issued subsequent to the Constitutional Court judgement rendering these sections unconstitutional, provides:

To provide the political and economic stability, protect rights and freedoms of citizens of the Republic of Belarus, the Cabinet of Ministers of the Republic of Belarus as well as state bodies shall, until amendments and alterations are introduced into corresponding legislative acts of the Republic of Belarus, ensure that provisions of the following Decrees of the President of the Republic of Belarus are implemented unequivocally:

... -- No. 336, dated August 21, 1995 on certain measures to ensure stability and order in the Republic of Belarus.

27. The Committee must therefore once again refer to its previous conclusions concerning Presidential Decree No. 336 [see 302nd Report, para. 221] and call upon the Government to take immediate steps to revoke those articles of the Decree which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard. The Committee also requests the Government to keep it informed on the progress made with respect to its recommendations on the remaining points.

Case No. 1509 (Brazil)

28. At its November 1996 meeting, the Committee examined this case concerning the murder of trade unionist Valdicio Barbosa dos Santos [see 305th Report, para. 13]. On that occasion it noted that the Government had stated that Mr. Marçal da Rocha, accused of having committed the homicide, was still at large and that the police were trying to arrest him. It also noted that the judicial authorities had summoned the defence lawyer of Mr. Romualdo Eustaquio Luz Faria, accused of being jointly responsible for the homicide, to file his defence pursuant to the relevant provisions of the Code of Penal Procedure. In a communication dated 10 October 1997, the Government states that upon the request of the Public Prosecutor and the defendants' representatives, a further test was performed on the weapon seized from Mr. Romualdo Eustaquio Luz Faria, which confirmed it as the weapon used to fire the shots that caused the death of the trade unionist. The Government declares that there is sufficient circumstantial evidence to show that Mr. Marçal da Rocha, who is still at large and is being sought by the authorities throughout the country, was the actual perpetrator of the homicide. It also states that Mr. Romualdo Eustaquio Luz Faria is still in detention and is being tried. The Committee notes this information.

Case No. 1819 (China)

29. At its meeting in June 1996, the Committee requested the Government to ensure that the three seafarers -- Hua Chun Gui, Zhang Ai Zhao and Gao Ziao Hui -- are compensated for economic losses incurred during their nearly two-and-a-half years' detention and that the money, seamen's documentation and qualifications confiscated from them at the time of their initial arrest are restored to them. It also requested the Government to keep the Committee informed of the measures taken in this regard [see 304th Report, para. 158].

30. In its communication of 15 June 1997, the Government indicates that, after having made inquiries at the Tianjin local People's Court, it appears that no progress has yet been made in respect of this case.

31. The Committee notes this information with regret. The Committee recalls that this case concerns arrests and detention in violation of trade union rights which took place in 1992 and that, three seafarers suffered important economic and other losses from having been detained for over a two-year period. It requests the Government to keep it informed of any progress made in giving effect to its recommendations, in particular as concerns the compensation of the three detained seafarers.

Case No. 1594 (Côte d'Ivoire)

32. At its June 1997 meeting [see 307th Report, paras. 23-25], the Committee had requested the Government to indicate if the workers dismissed at Irho-Lame in 1993 had appealed to the courts in order to have their rights restored. The Committee had also requested the Government to ensure that the social elections at the Autonomous Port of Abidjan, requested since 1993 by the dockers' members of a trade union affiliated to the Trade Union Federation Dignité, be held immediately and to keep it informed of the outcome thereof.

33. In a communication dated 15 October 1997, the Government indicates that the Trade Union Federation Dignité, during a meeting which took place on 22 May 1997 at the office of the Minister of Employment, Civil Service and Social Planning, confirmed that the workers dismissed at Irho-Lame had not yet appealed to the courts in order to have their rights restored. The Government also points out that at the Autonomous Port of Abidjan, all recognized trade unions have assessed that it would be more feasible to prepare a collective agreement for the dockers before considering social elections. A draft agreement is being discussed between the trade unions affiliated to the Trade Union Federation Dignité and those affiliated to the General Union of Workers of Côte d'Ivoire.

34. The Committee takes note of this information with interest and requests the Government to continue to keep it informed concerning the pending questions related to the adoption of a collective agreement for the dockers as well as the result of the social elections in the Autonomous Port of Abidjan.

Case No. 1824 (El Salvador)

35. The Committee examined this case at its meeting of November 1996 [see 305th Report, paras. 33-35] when it noted that the Government had not provided the information requested in March 1996 concerning the following recommendations:

36. The Committee also noted that in November 1996 the Government stated that the trade union official, Mr. Huezo, was detained on charges of aggression against a national police officer as well as for the illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work. In addition, there was a further charge against this trade unionist for false testimony, sequestration, murder threats, illegal detention, defamation and damages and interest, based on allegations filed in November 1994. The Committee requested the Government to keep it informed of the outcome of the legal proceedings under way against Mr. Huezo.

37. In a communication of June 1997, the Government sent a large volume of documentation on the different stages of the legal proceedings on the illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work against the trade union official Mr. Huezo.

38. The Committee notes this information and requests the Government to keep it informed as to the final outcome of the proceedings as well as on the other charge against this official concerning false testimony, sequestration, murder threats, illegal detention, defamation and damages and interest. Finally, the Government urges the Committee to provide the information requested regarding the other allegations.

Case No. 1823 (Guatemala)

39. At its meeting of June 1997, the Committee made the following recommendations on the pending allegations [see 307th Report, para. 301]:

(a) Profoundly deploring the Government's continuing negative attitude to its recommendations in this case, the Committee once again urges the Government to immediately grant legal personality to the Trade Union of Workers of the General Labour Inspectorate (STIGT). The Committee requests the Government to keep it informed of any measures it may take in this regard.

(b) The Committee requests the Government to investigate why Ms. Malbina Dioderet Barrera, a member of the STIGT, renounced legal protection against her dismissal, and if it is found that her dismissal was the result of anti-union pressure it requests that measures be taken to reinstate her in her position. The Committee requests the Government to keep it informed in this regard.

(c) As regards the change in functions of 18 inspectors who were founding members of the Trade Union, the Committee requests the Government once again, in consultation with the 18 inspectors, to revoke the change in their functions. The Committee requests the Government to keep it informed in this regard.

40. In its communications of 10 June and 10 September 1997, the Government states that the members of the STIGT joined the General Trade Union of Employees of the Ministry of Labour and Social Insurance (in a letter of 10 June 1997, members of the General Labour Inspectorate request the Committee to close the case since an agreement has been reached). The Government also encloses a letter dated 11 August 1997 in which Ms. Malbina Dioderet states that her withdrawal was not motivated by anti-trade union pressure. As regards the change in functions of 18 inspectors, the current General Labour Inspectorate adopted a decision to reinstate them in their previous positions.

41. The Committee notes with satisfaction this information.

Case No. 1809 (Kenya)

42. The Committee examined this case at its March 1996 meeting [see 302nd Report, paras. 355-385]. It had requested the Government to take the necessary measures to enable university professors and lecturers to form and join organizations of their own choosing including through the registration of UASU, to transmit a copy of the High Court's judgement concerning the appeal of a decision to refuse trade union registration, to keep it informed on the fate of university professors and lecturers dismissed for carrying out legitimate trade union activity and who had not yet been reinstated and finally, to keep it informed as to whether the charges made against Dr. Adar in violation of his fundamental right to free speech had been dropped.

43. In a communication dated 12 May 1997, the Government states that all academic staff in Kenya are employed under individual contracts of employment with the university authorities. According to the Government, the question of refusal to register their trade union is, pursuant to the Trade Unions Act, a matter for the High Court to decide. The Government mentions that the appeal of the Universities Academic Staff Union officials against the decision of the High Court of 1994 to dismiss the case is still pending in Court. The Government declares that it will take no action until the Court has ruled on the matter.

44. The Committee takes note of this information. Recalling that legal proceedings concerning the appeal of a decision to refuse trade union registration should be concluded expeditiously as justice delayed is justice denied, the Committee firmly hopes that the High Court's decision in this matter will be rendered in the very near future and once again requests the Government to transmit a copy of the decision as soon as it is handed down. Furthermore, the Committee once again urges the Government to take the necessary measures to ensure that those university professors and lecturers dismissed for carrying out legitimate trade union activities and who have not yet returned to their jobs are immediately reinstated. Finally, regretting that it has received no information regarding the situation of Dr. Adar, the Committee reiterates that it expects that any charges made against him in violation of his fundamental right of free speech will be withdrawn and urges the Government to keep it informed in this regard.

Case No. 1883 (Kenya)

45. The Committee examined this case at its November 1996 meeting [see 305th Report, paras. 383-396]. It had requested the Government to keep it informed of the High Court's decision in the matter of the restoration of registration to Kenya Wildlife and Allied Workers' Union, and to provide it with a copy thereof.

46. In a communication dated 13 May 1997, the Government states that the matter concerning the deregistration of Kenya Wildlife and Allied Workers' Union is still in the High Court and has not been determined yet.

47. The Committee takes note of this information. The Committee expects that the decision of the High Court in this matter will be rendered in the near future and once again requests the Government to transmit a copy of the decision as soon as it is handed down.

Case No. 1719 (Nicaragua)

48. The Committee examined this case at its June 1996 meeting [see 304th Report, paras. 395-416], at which it appealed to the Government, with a view to encouraging a return to harmonious industrial relations, to endeavour to facilitate the reinstatement in their jobs of the UNE union leaders and members dismissed in the customs sector. In addition, with regard to the judicial appeals lodged by the workers dismissed from the San Pablo plantation and Amerrisque abattoir and the expulsion of the Secretary-General of ANDEN from the National Council of Education, the Committee firmly expected that the judicial authorities would hand down their decision as soon as possible.

49. In a communication of May 1997, the National Union of Employees (UNE) states that the Government neither recognizes nor is willing to accept the Committee's recommendation concerning the reinstatement in their jobs of the trade union leaders and members of the UNE dismissed in the customs sector.

50. In a communication dated 22 July 1997, the Government states in this respect that, according to the record of the administrative proceedings in the Ministry of Labour, the customs workers launched a strike in 1993 because the trade union leaders refused to negotiate with the General Directorate of Customs on the list of demands under the collective agreement and that the trade union leadership should assume its responsibility to its members, especially when the employer's side was willing to bargain. All of this was noted during an inspection at the scene, with the result that the employer consented to resume bargaining and the workers called off the strike. The workers (the trade union) were informed of this but did not respond. The General Labour Inspectorate subsequently decided, at the employer's request, to declare the strike illegal for failing to comply with the provisions of section 224 of the Labour Code. An appeal was lodged against this decision with the General Director of Labour, who, after reviewing the record, upheld the decision handed down by the General Labour Inspector, and as a consequence an official communication was issued to the executive authorities requesting them to safeguard the public order, since violent acts disrupting the public order and violations of the Penal Code had been committed. The administration of the General Directorate of Customs then requested the Departmental Labour Inspectorate to authorize it to dismiss ten trade union leaders in the customs sector for purloining documents and tampering with their contents, signatures and stamps. The proceedings were duly carried out and it was ascertained in addition that six of the ten trade union leaders no longer had legal capacity, as it had expired, so that the request for authorization to dismiss nine of the ten workers was granted. It should be pointed out that the violations of labour law committed by these trade union leaders were as follows: lack of integrity and immoral conduct at work, which was also confirmed on the grounds that had been verified and noted by the Ministry of Labour (absence of legal capacity). By Decision No. 44 dated 2 June 1994 (a duly certified copy of which was attached), the Supreme Court of Justice turned down the appeal for amparo (protection under constitutional provisions) lodged by the trade union leaders in the customs sector, finding that the Constitution recognizes the right to strike on the understanding that it is regulated by section 222 and other provisions of the Labour Code. However, a specific procedure has been laid down for the exercise of the right to strike, which must take place in conformity with the law. The Government adds that acts had been committed giving rise to unusual situations, for example the electricity had been cut off, home-made bombs had been set off, the circuit breakers of the lighting system had been sabotaged, customs officials' vehicles damaged and physical attacks had been perpetrated. The dangerous acts and abuses committed during the customs workers' strike were against the interests of society and the Government itself, and despite this harmonious labour relations had been restored with most of the workers, facilitating their return to work. The evidence which prompted the Ministry of Labour to authorize the dismissal of the trade union leaders, i.e. nine out of ten of the dismissals requested by the employer, was entirely clear. There had been no serious risk of abuse or serious prejudice to freedom of association, since no mass dismissals had taken place, the only requests for termination of the contract of employment by the employer on record being those mentioned above. Harmonious labour relations prevailed in the country's customs sector, since the strike was not really motivated by social demands and it was made clear that the trade union organization had been recognized by the representatives of the General Directorate of Customs. Negotiations of the collective agreement were currently under way and the Secretary-General of the trade union had stated that there was labour stability and good employer/employee relations.

51. In addition, in a communication of 6 October 1997, the Government states that: (1) regarding the pending legal proceedings relating to the dismissals at the San Pablo plantation, the workers' legal adviser presenting the case indicated that the matter has been abandoned since those involved decided to work in Costa Rica and discontinued the proceedings; and (2) regarding the legal proceedings concerning the dismissal of the workers at the Amerrisque abattoir, in conformity with the judicial decision, the employer made a settlement payment to 111 workers, who expressly renounced all rights to take further legal action. As a result, the employer cancelled the salary and gave them their compensatory payment.

52. The Committee notes the information communicated by the Government regarding the dismissal of the trade union leaders and members of the UNE, in particular its statement to the effect that there are now harmonious industrial relations in the customs sector. The Committee observes that a total of nine dismissals took place and considers that since they date back to 1993, reinstatement does not appear to be feasible. As regards the judicial appeals lodged by the workers dismissed from the San Pablo plantation and Amerrisque abattoir, the Committee notes the information submitted by the Government. Finally, regarding the legal proceeding with respect to the expulsion of the Secretary-General of ANDEN from the National Council of Education, as the Government has not communicated any information concerning the outcome of the proceedings, the Committee firmly expects that the judicial authorities will hand down their decision as soon as possible.

Case No. 1793 (Nigeria)

53. During its examination of this case in June 1997 [see 307th Report, paras. 33-35], the Committee strongly reiterated its request for a mission to examine the issues raised and, in particular, to visit detained trade union leaders and urged the Government to respond positively to this request without any further delay. On 18 June 1997, the Government proposed the month of September to the Office as a period when the mission might be received and the Office, in a communication dated 4 July 1997, suggested that the mission take place from 8 to 17 September and requested the Government to confirm these dates as soon as possible so that the necessary organizational arrangements could be made.

54. In a communication dated 5 September, and received in the Office on 8 September, the Government indicated that the dates proposed were not suitable and that a letter would follow. In a letter dated 10 September 1997, the Director-General expressed his grave concern at the continual postponement of this mission and called upon the Government as a matter of urgency to propose the earliest dates in which the mission could be received. No further communication has been received from the Government.

55. Noting this information, the Committee cannot but deeply deplore the fact that, for nearly three years, the Government has consistently evaded responding to the urgent calls for a mission and, when finally agreeing to a month when such a mission could be carried out, the Government waited until the eve of the mission to indicate that the period was not suitable. The behaviour of the Government gives rise to serious doubts concerning its good faith in dealing with the Committee. The Committee would also point out that a new complaint has been submitted against the Government of Nigeria alleging the adoption of further anti-union decrees and detention of unionists (Case No. 1935). In these circumstances, the Committee reiterates in the strongest possible terms the calls which have been made to the Government.

Case No. 1796 (Peru)

56. At its meeting in March 1997, the Committee requested the Government to keep it informed of the outcome of the appeals lodged with the Supreme Court by certain trade union officers dismissed by the Iron and Steel Enterprise of Peru; to keep it informed of developments concerning a draft amendment to the Industrial Relations Act which would lift the prohibition denying the right to belong to organizations of their own choosing to workers during their probationary period; to keep it informed of the final decision handed down by the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso; and to establish an independent inquiry into the dismissals of trade union officers and members in the National Railway Enterprise of Peru (ENAFER), and to keep it informed in this regard [see 306th Report, para. 508].

57. In a communication dated 30 July 1997, the Government informs the Committee that (i) of the five former trade union officers of the Iron and Steel Enterprise of Peru who had lodged appeals, two had withdrawn their appeals and received their social benefits. Concerning the three others, the Government will inform the Committee of the decision handed down by the court; (ii) as regards developments concerning the draft amendment to the Industrial Relations Act, it has been analysed and discussed by the Committee on Labour and Social Security of the Congress of the Republic, and the Committee's recommendation has been taken into account by removing the provision requiring that a worker not be undergoing a probationary period in order to be able to join a trade union; (iii) as regards the final decision of the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso, it has not yet been handed down; (iv) as regards the inquiry into the dismissals of trade union officers and members in the ENAFER enterprise, inspections carried out show that the enterprise was in the process of reducing staff in accordance with Legislative Decree No. 26120, since ENAFER comes within the scope of the privatization process for which provision is made in this legislation.

58. The Committee notes the information communicated by the Government and requests it to keep it informed of the decision handed down by the judiciary branch concerning the remaining three trade union officers dismissed by the Iron and Steel Enterprise of Peru, and of the final decision handed down by the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso. As regards developments concerning the draft amendment to the Industrial Relations Act, the Committee notes with interest that the Committee on Labour and Social Security of the Congress of the Republic has removed from the bill the provision requiring that a worker not be undergoing a probationary period in order to be able to join a trade union, and draws this aspect to the attention of the Committee of Experts on the Application of Conventions and Recommendations. Lastly, as regards the dismissals of trade union officers and members in the ENAFER enterprise, the Committee once again requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination.

Case No. 1813 (Peru)

59. This case concerning the death, physical assault and arrest of trade unionists was last examined by the Committee in June 1997 [see 307th Report, paras. 42 and 43]. On that occasion, the Committee noted the information provided by the Government according to which judicial proceedings had been instigated against the workers arrested (Félix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutierrez Cárdenas and Julio Camacho Diáz) for disturbing the peace, and against the three persons charged with the murder of the trade unionists Alipio Chauca de la Cruz and Juán Marcos Donazre Cisneros. The Committee requested the Government to keep it informed of the outcome of these judicial proceedings.

60. In a communication of 18 September 1997, the Government states that no final ruling has yet been given in these proceedings and expresses its willingness to keep the Committee informed on the matter. The Committee awaits further information from the Government.

Case No. 1878 (Peru)

61. In relation to the allegation made by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR), the Committee in its meeting of June 1997 had requested the Government to carry out an investigation into the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust and as managerial staff, and to keep it informed in this respect [see 307th Report, para. 454].

62. In a communication dated 18 September 1997, the Government states that it is not within its competence to carry out an investigation as requested by the Committee, since there are already adequate legal mechanisms with which aggrieved workers may seek redress before the appropriate court and contest any reclassification which contravenes the law. The Government states that section 61 of the Regulations under the Law on Productivity and Competitiveness stipulates that reclassification by the employer can be contested and the workers concerned can submit an application to the judicial authority to suspend such reclassification within 30 days of the application being submitted.

63. While noting the legal mechanisms available to workers for defending their rights, the Committee notes with regret once again that the Government has not provided any new information to clarify the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust and as managerial staff, especially bearing in mind that, as pointed out by the complainant, all the workers reclassified as employees in positions of trust or as management staff are trade unionists, and include all the union's leaders, a fact which was not denied by the Government. In this respect, the Committee recalls that the Government, in ratifying Convention No. 98, has undertaken to apply Article 1 according to which "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment" and once again requests the Government to take any necessary measures to ensure that in future such staff reclassification programmes are not used to carry out acts of anti-union discrimination.

64. Finally, the Committee notes that in a communication dated 12 September 1997, the Single Trade Union of Technicians and Specialized Auxiliaries of the Peruvian Social Security Institute (SUTAEIPSS) made certain comments on the partial application by the Government of the recommendations formulated by the Committee at its March 1997 meeting relating to this case [see 306th Report, para. 540(a) and (b)]. The Committee requests the Government to provide its comments in this respect.

Case No. 1826 (Philippines)

65. During its last examination of this case in November 1996 [see 305th Report, paras. 54-56], the Committee had urged the Government to establish an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi Inc. in Danao City, and to take the necessary measures to ensure that a new certification election was held if the complainant's allegations of interference by the management of Cebu Mitsumi in the election proceedings of April 1996 proved to be true.

66. In a communication dated 11 September 1997, the Government states that the Office of the Secretary of Labor and Employment carried out a thorough study of the facts of this case. Further to this review, the Secretary of Labor and Employment issued a resolution on 31 July 1997 declaring the certification elections conducted in Cebu Mitsumi on 24-25 April 1996 as invalid and ordering the conduct of another certification election immediately to determine the true will of the employees. The decision, which is appended to the communication, relies on section 8(f), Rule VI, Book V of the Rules and Regulations of the Philippine Labor Code, which provides that a labour organization can only be certified as a sole and exclusive bargaining agent if it has obtained a majority of the valid votes cast by the eligible voters. Further, for a certification election to be considered valid, at least a majority of all eligible voters must have cast their votes. It was found that out of 9,850 eligible voters, only 1,032 cast ballots, thus not constituting a majority of the registered voters. The Government adds that, to date, the resolution has not been implemented as the management of Cebu Mitsumi Inc. has filed a motion for consideration with the concerned regional office. The motion has not yet been transmitted to the Office of the Secretary.

67. While observing that the Government did not establish an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi, the Committee notes with interest that the Government's own investigation into the matter resulted in the decision to declare that certification election invalid and to order the conduct of another certification election as soon as possible. The Committee therefore urges the Government to ensure that a new certification election is held immediately at Cebu Mitsumi Inc., especially in view of the fact that the CMEU filed a petition for a certification election nearly four years ago, in February 1994, which was, moreover, signed by almost all rank-and-file workers of Cebu Mitsumi [see 302nd Report, paras. 405 and 408]. The Committee requests the Government to keep it informed of any progress made in this regard.

Case No. 1785 (Poland)

68. In its 305th Report approved by the Governing Body in November 1996, the Committee once again requested the Government to keep it informed of any progress concerning the restitution of trade union properties confiscated during the period of martial law on an equal footing between the two trade union confederations [see paras. 57-59].

69. In a communication dated 28 May 1997, the Government states that after the adoption of the Act of 10 May 1996 amending the Act concerning restitution of assets, the Social Commission for Revindication took decisions, imposing upon the State Treasury an obligation of cash payment or compensation in other (non-cash) forms determined by the law, in favour of various organizational units of NSZZ "Solidarno". The trade union organizations filed motions concerning the revision of previous decisions of the Commission. The full realization of compensation in non-cash forms would only be possible after the Council of Ministers had issued an appropriate executory regulation but the finalization of the works on the Council of Ministers' regulation would occur after the Sejm had amended article 3.2, paragraph 1, of the Revindication Act as amended by the Act of 10 May 1996 in order to determine non-cash forms of compensation which would be governed by the mentioned regulation. Such an amendment was necessary, because the forms of compensation, laid down by the Act, did not prove feasible.

70. Article 45 of the Trade Union Act, in its wording formulated by article 6 of the above-mentioned Act of 10 May 1996, imposed upon the Minister of Labour and Social Policy an obligation of issuing (after consultation with NSZZ "Solidarno" and OPZZ), a regulation drawing up lists of real assets (with equipment) of the former trade union association which would become the sole property of NSZZ "Solidarno" or OPZZ. On 7 March 1997, the Labour Minister created the Inventory Commission composed of two representatives of each: NSZZ "Solidarno", OPZZ, the Labour Minister, plus a secretary of the Commission. The Inventory Commission was to complete its work by the end of May 1997. At the same time, parliamentary work was in its final stage (the adopted Act had been submitted to the Senate) on the amendment of the Trade Union Act (of 23 May 1991) and some other Acts necessary for effective distribution by the Labour Minister of assets of the former trade union association and transfer of ownership to beneficiaries of such distribution.

71. The Committee takes note of this information. It once again requests the Government to comply with its previous recommendation at an early date concerning the final and equitable redistribution of trade union assets between the two trade union confederations and to keep it informed in this regard.

Case No. 1891 (Romania)

72. The Committee examined this case at its March 1997 meeting [see 306th Report, paras. 556-575] at which time it urged the Government to amend the legislation regarding dispute settlement, in particular the provisions restricting the right to strike. The Committee further recommended that the Government ensure that police intervention, if it is necessary to enforce the execution of court decisions affecting strikers, takes place in full observance of the elementary guarantees applicable in any system that respects basic civil liberties.

73. In a communication dated 4 September 1997, the Government states that a new law on the settlement of labour disputes is in the process of being drafted in consultation with the social partners. During the discussions on this subject which took place in the tripartite consultative commission established by the Ministry of Labour and Social Protection, the representative of the Ministry acknowledged the willingness of the Government to repeal section 30 of Act No. 15, 1991 respecting the settlement of labour disputes which authorizes the Supreme Court of Justice to suspend a strike for up to 90 days. The Committee notes this information with interest and requests the Government to forward to it a copy of the new law once it is adopted.

74. The Government further acknowledges the importance it attaches to ensuring that all police action takes place pursuant to powers established by law and with full respect for fundamental rights and civil liberties. It states in addition that a human rights committee has been set up by the Ministry of the Interior to investigate violations involving the police. The Committee notes this information and requests the Government to indicate whether the human rights committee has been charged with investigating the particular allegations raised in the case, and to keep it informed regarding the results of such investigations.

Case No. 1618 (United Kingdom)

75. At its meeting in June 1996, the Committee requested the Government to keep it informed of any developments in the Harrison v. Kent County Council case. Furthermore, while noting the Government's indication that existing legislation provided adequate protection against discrimination on grounds of trade union membership or activities and that there were extensive procedures to ensure that the legislation is effectively implemented, the Committee recalled that the circumstances giving rise to this case indicated that an express protection in the legislation against blacklisting or other forms of discrimination based on past trade union membership or activities was necessary in order to ensure full protection to workers in this regard. It therefore urged the Government to give consideration to such explicit protection and to keep it informed of any measures taken [see 304th Report, paras. 18-20].

76. In a communication dated 21 July 1997, the Government indicates that the case of Harrison v. Kent County Council has been settled. Since however the terms of the settlement are confidential and the Government was not a party, the Government has no further details concerning the terms of the settlement.

77. The Committee notes this information. It further notes however that the Government has not provided any information concerning the consideration of incorporating an express protection in the legislation against blacklisting. The Committee therefore once again urges the Government to give consideration to such explicit protection and to keep it informed of any progress made in this regard.

Case No. 1581 (Thailand)

78. At its meeting in November 1996, the Committee once again requested the Government to keep it informed of the progress made in adopting the State Enterprise Labour Relations Bill and expressed its hope that the Bill, in its final form, would be in full conformity with freedom of association principles [see 305th Report, paras. 61-63].

79. In its communication of 26 September 1997, the Government indicates that, following the dissolution of the House of Representatives in September 1996, the Bill was resubmitted to the newly elected House on 18 December 1996. The Bill was approved in its final reading in the House on 19 February 1997 and passed its first reading in the Senate on 20 February and passed the Scrutinizing Committee of the Senate on 13 May. According to the Government, the Bill is now awaiting its second and final reading in the Senate.

80. The Committee takes note of this information. Once again it trusts that the Bill will be adopted in the near future and that, in its final form, it will be in conformity with freedom of association principles. It requests the Government to keep it informed of any progress made in this regard and to provide a copy of the Bill as soon as it has been adopted.

Case No. 1856 (Uruguay)

81. At its meeting of March 1996, the Committee made the following recommendation: "Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses S.A. Enterprise, the Committee requests the Government to conduct an inquiry into the reasons for the dismissals and, should it find that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on this subject" [see 302nd Report, para. 439]. During its previous examination of the case in November 1996, the Committee noted the Government's statements that the General Inspectorate for Labour and Social Security was carrying out an investigation into the allegations made [see 305th Report, paras. 64 and 65].

82. In a communication dated 5 March 1997, the Government states that the investigation is at the preliminary stage, i.e. the evidence presented by the parties concerned, consisting mainly of eyewitness accounts, is being collected and processed and that therefore no final conclusions have yet been reached on the matter. The Government adds that when the administrative procedure under way reaches its final stage, the Committee will be informed of the outcome.

83. The Committee takes note of this information and since the inquiry has already taken one year it hopes that the administrative authority will expedite the process and asks the Government to take steps to this end. The Committee awaits the final outcome of the inquiry.

* * *

84. Finally, as regards Cases Nos. 1623 (Bulgaria), 1726 (Pakistan), 1761 (Colombia), 1818 and 1833 (Democratic Republic of the Congo), 1834 (Kazakstan), 1850 (Congo), 1857 (Chad), 1858 (France/Polynesia), 1863 (Guinea), 1864 (Paraguay), 1870 (Congo), 1877 (Morocco), 1886 (Uruguay), 1896 (Colombia), 1903 (Pakistan), 1905 (Democratic Republic of the Congo), 1907 (Mexico) and 1989 (Croatia), 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. Moreover, the Committee has just received information concerning Case No. 1698 (New Zealand) and Case No. 1910 (Democratic Republic of the Congo) which it will examine at its next meeting. The Government of India indicated that it would send information concerning Cases Nos. 1854 and 1890 soon.

Case No. 1934
Interim report

Complaint against the Government of Cambodia
presented by
the World Confederation of Labour (WCL)

Allegations: Violations of the right to establish a trade union,
the right to strike and collective bargaining, dismissals of
trade unionists, pressure on and threats against trade unionists

85. In its communication of 8 July 1997, the World Confederation of Labour (WCL) submitted a complaint of violation of trade union rights against the Government of Cambodia. Additional information was sent in a communication dated 17 September 1997.

86. The Government sent its observations in a communication dated 19 August 1997, but it has not yet submitted its comments on the additional information.

87. Cambodia has neither ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

88. In its communication of 8 July 1997, the WCL denounces violations of the right to organize and the right to strike, as well as of other trade union rights and civil freedoms.

Overall situation

89. The WCL points out that the democratic elections in Cambodia and the pacification of the country have encouraged foreign investors to set up enterprises, especially in the clothing and textiles industry -- in which almost all the staff is made up of young girls from poor peasant families. The complainant describes the working conditions in the clothing industry: 14 hours of work per day, seven days per week; compulsory overtime; wages of US$30 (less than the subsistence level); deductions on wages by the employer to cover expenses incurred by medical examinations, training and the equipment provided to staff, etc.; deductions on wages for medical treatment required as a result of an occupational accident; lack of protection in the event of sickness or maternity; lack of protection against dismissals; shortcomings in the area of safety and health.

90. Workers have been insulted and received blows; some have even been locked up in the factories. They have been beaten up during demonstrations and around the factories. A number of workers received blows merely because they moved around during working hours -- and several accounts bear witness to this. This violence was perpetuated by the police or factory guards. The Secretary of State for Social Affairs wrote to employers to remind them of their obligations. It is common practice for women workers to be subject to a body search. Restrictive access to toilets is a further example of degrading humiliations inflicted on workers, who must use rationed coupons limiting their use of toilets to once a day. According to the complainant, both the labour inspectorate and the judicial system are extremely inadequate. In its additional communication of 17 September 1997, the complainant states that there have been no improvements in working conditions.

Establishment of the trade union SLORC

91. It was against this background that the first trade union organization -- the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) -- was set up on 10 December 1996 by a group of 158 workers in one of the largest factories in the country. The trade union soon had nearly 5,000 members.

92. With a view to improving working conditions, the trade union carried out peaceful action, started negotiations and concluded agreements on wages and working conditions with four enterprises. However, many enterprises refused to allow the trade union to exist; employers resorted to brutal action to undermine the determination of the workers and impede their lawful trade union activities. Furthermore, the State took repressive measures against the trade union.

Strikes

Cambodia Garment Ltd.

93. According to the complainant, the SLORC organized the first strike in Cambodia's modern history on 17 December 1996 in the factory of Cambodia Garment Ltd., to protest against working conditions, attempts to disband the recently established trade union and bad treatment inflicted on workers by their bosses. It also called for the respect of human rights, a minimum wage of $50, a 40-hour working week and paid maternity leave. Nearly 4,000 workers in the Cambodia Garment Ltd. went on strike. During the strike, the guards in the enterprise fired into the air to intimidate and disperse the workers.

94. The three main officials of the new trade union, Ms. Mary Ou, the President, and Ms. Om Navy and Ms. Phuong Sophon, were forcefully detained by the factory's management and threatened with dismissal. They were questioned for a whole morning by the directors on their role in setting up the trade union and were subsequently released.

Gennon Manufacturing

95. The workers of the Gennon Manufacturing enterprise went on strike to put forward their claims. A representative of the management refused to negotiate with the strikers, stating that the trade union was an illegal organization. A factory employee was dismissed after having lodged a complaint with the municipal court of Phnon Penh on 2 January 1997, on the grounds that the directors of the factory had forced her to have a body search in front of other employees.

Tack Fat Garment

96. The workers in the Tack Fat Garment enterprise took action to protest against: delays in the payment of their wages; the systematic dismissal of workers if they lodged a complaint; arbitrary cuts in wages; the detention of workers to force them to do overtime and threats to suspend them or cut their wages if they refused; dismissal in the case of a second refusal.

97. The workers in the factory went on strike on 3 January 1997 to obtain an improvement in their working conditions. The management tried to break up the strike by detaining 200 strikers. On 4 January, the trade union organized a peaceful demonstration to back its claims. The enterprise threatened to refuse to pay the wages for December if the workers did not end their strike. The demonstration, mostly made up of women, was violently crushed by the police, led by the chief of the Phnom Penh police. The Ministry of the Interior had ordered the police to go on the spot, where they used water cannons and beat up the workers -- some of whom, including women, were injured and others arrested by the police. One woman was admitted to hospital after receiving head injuries when she was thrown to the ground by the pressure of the water cannon. Another woman worker was injured as a result of blows she received from the butt of a rifle wielded by a policeman. Yem Sarin, a worker of 29 years of age, was punched by the police and had a swollen mouth. Men Peuv, 27 years of age, pushed against a wall by a policeman, had deep scratches on her face.

98. On 6 January, 500 workers gathered in front of the factory and demanded payment of their December wages. Police and anti-riot brigades intervened. The trade union officials urged the workers to enter the factory premises to avoid violence. Police entered into the factory and, using loudspeakers, ordered the workers to resume work. However, the workers were not intimidated. Pov Kero, 19 years of age, who was handing out leaflets listing the workers' claims (including: an end to arrears in wages, systematic dismissals of workers if they complained, arbitrary cuts in wages, overtime forced on workers), was forcefully taken away and beaten up so badly that he lost consciousness. He was detained all night. The owner of the factory, Mr. Lee, refused the workers' requests on economic grounds, arguing that if he complied this would raise production cost, and undermine investment and export prospects.

99. On 10 January, the press reported that the factory workers who had decided to continue work were under the surveillance of 100 or so members of the military police -- many of whom were armed.

100. The strike came to an end on 17 January. The employers accepted to start discussions on the workers' claims. On 18 January, when work was resumed, 13 workers were arbitrarily dismissed on the grounds that they had started working one day late. In fact, it seems that they were dismissed for having participated in the strike. They were subsequently informed that they would be reinstated if they undertook in writing to stop stirring up the workers. Thip Chantavy and Mao Chansithoeun, whose accounts appeared in the press on 20 January, were among the workers dismissed.

Violations of other trade union rights

101. According to the complainant, these actions clearly demonstrate that the Cambodian Government has violated the rights guaranteed under Conventions Nos. 87 and 98 and that the employers and the Government systematically restrict and undermine the right of workers to organize freely. The officers and activists of SLORC had tried to organize an independent trade union capable of negotiating with the employers. The refusal of the management of Gennon Manufacturing to negotiate, on the grounds that the trade union was an illegal organization, reflects the position of most of the employers. This attitude contravenes Article 2 of Convention No. 87 which guarantees the right to workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. The trade union was also set up in accordance with article 36 of the Constitution of the Kingdom of Cambodia, which stipulates that Khmer citizens of either sex shall have the right to form and to be members of trade unions

102. The right to strike recognized as a lawful means for workers to defend their interests and guaranteed under Convention No. 87, has been violated by the Government. The Government and the employers called in security forces on a large scale to put down the strikes in the factories and during the strikers' demonstrations. In view of the horrendous working conditions in Cambodia, particularly in the clothing industry, the WCL feels that the right to strike is an essential means whereby workers' organizations can promote their economic and social interests.

B. The Government's reply

Overall situation

103. In its communication dated 19 August 1997, the Government explains that, generally speaking, there has been a constant and considerable increase in the number of private enterprises, especially in the clothing industry. At the end of 1996, there were 43 clothing factories in Phnom Penh and in the neighbourhood of the city, which employed approximately 20,000 employees -- of whom the overwhelming majority were women. At the beginning of 1996, the employers in 36 clothing factories had founded the Cambodian Clothing Manufacturers' Association.

104. In March 1997, a new Labour Code was officially promulgated which, according to the Government, was an improved version of the Labour Codes of 1972 and 1992. The Ministry of Social Affairs, Labour and War Veterans (hereinafter referred to as the Ministry of Labour) has the urgent task of implementing the Labour Code. This legislation is as new for public officials as it is for employers and workers. The Government stipulates that the new Labour Code (in the same way as that of 1992) establishes working time at eight hours a day, six days a week. If overtime exceeds one hour a day, the employers must obtain previous authorization from the labour inspectorate. Workers may not be forced to do overtime against their will.

105. The Government points out that, according to the agreements reached between the Ministry of Labour and the Cambodian Manufacturers' Association of 25 December 1996 and 17 January 1997, the minimum wage has been set at US$30 for an apprentice and US$40 for a worker. According to the interministerial communiqué of 26 December 1996, the representative of the Ministry of Labour, the representative of the Ministry of Industry and the employers' association grouping 36 clothing factories continued their discussions. The employers agreed to grant the workers fringe benefits, overtime pay for night work and various expenses (punctuality bonuses, transport, uniforms, etc.). They nevertheless requested to be given some time to discuss specifically these issues with workers or their representatives. As regards working time, the employers decided to apply the 48-hour week as stipulated in the Labour Code. The Ministers concerned, for their part, decided to make gradual improvements to working conditions and the election of staff delegates. The Government points out that any expenses incurred by a medical examination are borne by the employer. The employer may deduct a part of the workers' wages in order to offset the loan taken out by these workers to buy the materials and equipment for which they are responsible. Any medical treatment for workers who have incurred an occupational accident is the responsibility of the employer. Any insults or acts of violence are completely forbidden and are considered a very serious offence on the part of the employer. There is no legal provision forbidding workers from going to the toilets. Workers are entitled to a rest period in the event of sickness or maternity. There is a maternity leave of 90 days and the beneficiary is paid at least half of her salary. Dismissed workers must be given advanced notice and be paid compensation, unless they have committed a serious offence. They are entitled to damages if they are dismissed without any valid grounds being given. The employer is responsible for the health and security of workers at the workplace.

106. Furthermore, the Government points out that according to the reports drafted by various groups of the labour inspectorate and other information, the Ministry of Labour came to the conclusion that there had been a general violation of working conditions. Nonetheless, the Ministry made the following comments: workers are only forced to do overtime occasionally, for very short periods, when there is a large order for clothing; in these cases, the workers were paid the corresponding wages and received an additional meal. Before 1 January 1997, some clothing factories paid a wage of less than US$30 a month; however, at that time, the Ministry had not yet established the minimum wage. Occupational accidents in clothing factories are rare and usually not very serious. Workers are only searched on their way in or out of the factory to protect the factory's property and guarantee security. A body search was only carried out in one factory in which two foreign employees searched two women workers in an indecent way. The latter lodged a complaint with the Ministry which made the employers at fault pay US$1,000 damages to each of the workers concerned. However, this was an isolated case. The large majority of workers are young, single girls and there are no grounds to believe that pregnant women are not entitled to maternity leave. In some cases, employers watch out for workers who go to the toilets to avoid work. In some factories which do not have an infirmary, employers authorize sick workers to seek medical attention outside the factory. Only very few factories still do not have occupational physicians and labour inspectors have taken steps to ensure that employers assume their responsibilities in this respect. The majority of workers dismissed did not receive compensation. Amongst the complaints lodged on this matter to the Ministry, there was only one case involving illness and the other three were related to trade union activities. Occupational safety is not a problem as the labour inspector carries out inspections in the area of occupational safety and health.

107. A number of workers were insulted by the managers in the factory, especially by the foremen. Section 79 of the Labour Code of 1992 and section 23 of the new Code, clearly stipulate that any insults, violent behaviour or physical assaults are considered a serious fault on the part of the employer. However, such cases have been rare in the past. Any time the Ministry has been informed of a complaint in this respect, it has sent an inspection group to settle the dispute immediately, ordering the employer to cease such action immediately and warning him that the matter will be brought before the courts if he commits a subsequent offence. To date, there has not been a second offence. Other offences give rise to warnings for the following reasons: government policy is trying to attract foreign investment to solve the problem of unemployment and develop the national economy. The clothing industry is developing rapidly and absorbing much of the labour force, particularly women. In Cambodia, labour legislation and regulations are a recent phenomenon and, as yet, there is an inadequate knowledge of the law, and a lack of experience and practice. The Labour Code has therefore been implemented in stages: before actually bringing a matter before the court or applying a penalty, the labour inspectorate has tried to increase awareness of the Code, monitor its application and give warnings. There are not yet enough labour officials or means to keep up with the rapid development of the economy and changes in the world of work. The contentious issue of allowing workers a certain period of time to go to the toilet is difficult: it requires not only the understanding of the employer but also the good faith of the workers. However, occupational physicians have advised employers to allow workers to use the toilets whenever they need to do so. Sick workers have been neglected for two reasons: not all factories have an occupational physician as yet and have sent their workers to be examined to make sure that they are physically fit -- as they should have done. The Ministry is taking measures to penalize factories which have not complied with this requirement.

Creation of the trade union SLORC

108. The Constitution of the Kingdom of Cambodia, adopted in 1993, stipulates the right of all citizens to establish and be members of trade unions and specifies that "the organization and conduct of trade unions shall be determined by law". The Free Trade Union of Workers of the Kingdom of Cambodia (SLORC) was established on 15 December 1996, before the new Labour Code, which contains provisions on freedom of association, had been adopted and officially promulgated. Although the Kingdom of Cambodia has not yet ratified Conventions Nos. 87 and 98, the new Labour Code contains specific provisions relating to trade union rights and freedoms in accordance with the standards of both of these Conventions. SLORC was set up by a politician from a party which is in opposition to the Royal Government and his political objectives outweigh any that might be to defend the real interests of workers. His name is Mr. Sam Rainsy, President of the Party of the Khmer Nation, a former member of the Royal Government who, according to the Government, was asked to resign by the National Assembly. The name of the trade union (which first of all seems to have been called "Trade Union of Free Workers of the Khmer Nation") and its activities are closely linked to the Party of the Khmer Nation. The president of this party was the direct head of this trade union, which is contrary to Article 10 of Convention No. 87. In an appeal dated 27 December 1996, of which the Government provides a copy, the Government referred to the demonstrations by workers in clothing factories who were asking their employers to respect working conditions such as working hours, wage increases, benefits and other requests. It also mentioned the inter-ministerial communiqué of 26 December and the wage agreement of 25 December. The Government states that "profiting from workers' action in support of their claims, a handful of extremists exploited the situation for their own political ends by inciting workers to organize demonstrations and marches without respecting the law still in force and using the name of 'Trade Union of Free Workers of the Khmer Nation' which had not yet fulfilled the necessary administrative requirements to influence national and international public opinion".

Strikes

Cambodia Garment Ltd.

109. In this factory, the workers had elected the delegates on 22 April 1995. It was not appropriate to organize a strike at this time because the legislation on trade unions had not yet been promulgated. At the time of the strike, discussions were being held at the National Assembly on the draft Labour Code. Informed of the strike, the Deputy Director of the Labour Inspectorate Department (Ministry of Labour) Mr. Kéo Borentr, decided to go to the factory on the morning of 18 December with the head of an inspection group to try and settle the dispute. Mr. Bun Va, representative of the factory director, confirmed that the strike of 15 and 16 December had been led by Mr. Sam Rainsy and Mr. Khiev Rada, President and Secretary-General of the Party of the Khmer Nation, respectively. He admitted that the factory guards had fired into the air on 17 December but that this had been to deter unknown persons, led by the two above-mentioned persons, from storming the premises after negotiations had broken down. The inspection group interviewed Mrs. Mary Ou, Mrs. Um Navy and Mrs. Phuong Sophon, President, Vice-President and Secretary-General of the SLORC, respectively, who stated that they had been detained by the employer but had not, according to the Government, been ill-treated or threatened with dismissal. The inspection group asked the three trade union officials to put an end to their trade union action, particularly the strike, whilst awaiting the adoption of the new Labour Code which would recognize trade union rights and freedoms. The Government enclosed with its reply the minutes of the meeting of 18 December "on the matter of setting up a trade union and its aims" between the representatives of the Ministry of Labour and the three trade union officials mentioned above. According to this document, the Deputy Director of the Labour Inspectorate informed the three women workers that the Code had not yet authorized the setting up of trade unions, but that the employees could put forward claims with respect to their rights and interests through the staff delegates they had already elected. He asked them to stop spreading propaganda and put an end temporarily to their trade union activities whilst awaiting the adoption of the new Labour Code which would regulate trade union rights and activities. The president of the trade union stated, according to this document, that the trade union, set up on 15 December 1996 with the assistance of Mr. Rainsy, intended to promote and defend the rights and freedom of workers and that it had the following objectives, amongst others: wage increases; cuts in weekly working hours; benefits in the event of sickness; dismissals with valid grounds; appropriate benefits in the event of pregnancy. She stated that this trade union had been set up at national level and had no political leanings. The inspection group went back to the factory on 19 December in the morning with a view to settling the dispute. The group saw Mr. Sam Rainsy and Mr. Khiev Rada, as well as many other people not belonging to the factory, enter into the factory premises. Both persons mentioned above insulted and were extremely rude to the factory directors; they also made accusations against the Government, especially against officials from the Ministry of Labour. Their aim was not to solve the problems but to stir up the workers against the employers and the Government, especially the Ministry which, at all times, had successfully tried to play a conciliatory role in disputes within the factory. Only very few workers in the factory, members of the party in question, took part in this strike -- together with drivers of taxi-motorbikes and vagrants paid by the party. According to the text of the inter-ministerial communiqué of 26 December, of which a copy was submitted by the Government, the Ministry of Labour discussed with the employer who agreed to satisfy the workers' demands on a number of points, including overtime, sickness benefit, maternity leave and, notice and compensation in the event of dismissal -- in accordance with the Labour Code. The employer also undertook to give instructions to the management of the enterprise to use decent language and behave in a correct manner towards the workers.

Gennon Manufacturing

110. When he was informed of the strike in this factory, Mr. Kéo Broentr went with the inspection group on the spot and stayed from 25 to 30 December 1996 to try and settle the dispute. The group first interviewed the employer and then, on the afternoon of 25 December, held a meeting with the strikers and informed them of the inter-ministerial communiqué dated 26 December concerning the increase of the minimum wage in the clothing industry to US$40 a month. In view of the fact that this factory had not yet any staff delegates, as it had just been created, the inspection group requested the workers to elect staff delegates as soon as possible so that the latter could lawfully represent the workers' interests in discussions with the employer. Mr. Sam Rainsy, his wife, members of the Party of the Khmer Nation and other persons not belonging to the factory arrived and started insulting the Government, the Ministry and factory management; they encouraged the workers not to accept any settlement of the dispute by the inspection group. Mr. Rainsy insisted that the five so-called representative workers that he had previously appointed, as well as his wife, should be able to enter the factory to negotiate with the employer. The latter accepted to receive these representatives -- but not Mr. Rainsy or his wife. Mr. Rainsy then started making threats and incited people to throw stones which caused damage to the premises. The persons involved in this violence refused to listen to the competent authorities and the police who advised them to settle the dispute peacefully.

111. As regards Mrs. Chun Rany and Mrs. So May, workers in the Gennon Manufacturing factory, who had accused the factory management of making them undress to be searched, this matter was settled by the Ministry on 12 February 1997 by means of a conciliation. The director of the factory accepted to pay each worker US$1,000 damages.

Tack Fat Garment

112. As in both other cases, the SLORC did not turn to the law to settle the dispute. On 3 January, at about 2 pm, most of the workers were at work. The inspection group, led by Mr. Kéo Borentr, was discussing with the directors of the factory when militants from the trade union caused panic in the factory by throwing stones onto the buildings, from outside, destroying part of a roof. Mr. Sam Rainsy and his followers urged the workers to down tools and started using the same gross language as in the other two cases. The strikers forced their way into the main entrance of the factory. Amongst them, there were two drivers of motor-trailers, Lam Ham and Vong Saroeun, who used a large hammer to destroy the main door. Mr. Rainsy then proceeded to call an election by show of hands of 11 provisional workers' representatives. About 50 workers, out of the 1,000 in the factory, raised their hand. On 4 January, a meeting was held from 8 a.m. to 6 p.m. between the employer and the 11 temporary representatives under the chairmanship of Mr. Kéo Borentr, to try and settle the dispute. The representative of the Ministry of Industry, Mines and Energy, the representative of the police of Khan de Meanchey and the representative of the Ministry of the Interior took part in this discussion. The workers' representatives confirmed that until then they had never committed any act of violence against the enterprise but that they had been threatened by forces outside the enterprise and encouraged not to work. All the representatives agreed to organize the election of staff delegates on 6 January. Both parties reached an agreement on 12 of the 15 points under discussion. The issues that remained pending concerned payment of overtime, piece rates and the date on which December 1996 salaries should be paid. At the time of the discussions, Mr. Rainsy and the SLORC activists announced that they did not recognize the 11 representatives previously elected -- whom they accused of being sold to the management. They started punching two representatives who wanted to inform the strikers of the way the discussions had evolved and of their outcome. They refused to recognize the agreement reached and submitted new demands. They persuaded a small number of workers to march. The crowd blocked the traffic, creating havoc and disturbing public law and order. In order to guarantee the safety of the majority of workers who wanted to continue working to protect the factory property and maintain social order, and in application of the communiqué of the Ministry of the Interior of 19 December 1996 and the appeal of the Royal Government of 27 December, the police took the two drivers of the motor-trailers to the police station and used water cannons to break up the demonstration. During these events, no worker or demonstrator was tortured or mistreated by the police, contrary to the claims of the complainant. Only Mr. Lam Han and Mr. Vong Saroeun were detained and they were released once they had been interviewed. On 6 January, the factory put up a notice calling on the workers to come and fetch their wages and to resume work on 8 January. On 8 January the factory director paid the December 1996 wages due to the workers and, on the following day, organized the election of nine staff delegates and nine substitute delegates. On 11 January, the director once again appealed to the workers to resume work on 13 January at the latest. On 13 January, the director called together the representatives elected to discuss the pending issues. In view of the fact that some workers had not yet started work on the 13th, the director postponed the date upon which work should be resumed to 17 January.

113. On 21 January, the Ministry received a complaint from 13 workers from the Tack Fat factory accusing the director of having dismissed them without valid grounds. To settle the dispute, the Ministry convened both parties, but the employer refused to reinstate the workers for the following reasons: nine workers (including Mao Chansithoeun) had downed tools and not started work again on 17 January; two workers had stolen factory property and had been dismissed; two workers had been dismissed because they had left their work and not started again at the end of their authorized leave; and Mrs. Thip Chantavy did not work at the Tack Fat factory. The Government provided a copy of the minutes of this meeting, which was held on 31 July 1997.

Other trade union rights

114. The Government states that the complainant has only based its case on the complaints from the SLORC and that this latter union has political objectives. It has carried out its activities without respect for the law. It has often resorted to violent action to attain its political goals. It is opposed to the Royal Government and to the inspection group which is trying to settle the dispute peacefully in accordance with legal procedures.

115. The Cambodian authorities have not violated the rights guaranteed under Conventions Nos. 87 and 98. Although it has not yet ratified these Conventions, Cambodia respects the right of citizens to set up trade unions without previous authorization. Neither the Government nor the employer forbade the workers from setting up a trade union, even though the new Labour Code had not yet been officially promulgated, and the staff delegates were recognized as being the only lawful representatives of the workers. Furthermore, the SLORC is led by a political party, which is contrary to Article 10 of Convention No. 87. Under the Constitution, the organization and conduct of trade unions is determined by law. Consequently, the refusal to negotiate with the trade unions cannot be considered as a fault by the employer because the new Labour Code had not yet been adopted. The strikes and demonstrations organized by the SLORC had not respected the law of the land, which is contrary to Article 8 of Convention No. 87. The meetings and demonstrations organized by the SLORC in the Cambodia Garment Ltd, Gennon Manufacturing and Tack Fat Garment clothing factories were held without previous authorization and involved acts of violence which infringed public law and order, which is contrary to sections 1, 2, 4 and 6 of the Act on demonstrations. The Ministry of the Interior, in a press communiqué dated 19 December of which a copy has been communicated by the Government, states that the trade union set up by Mr. Sam Rainsy had not yet officially submitted its file to any competent institution; it had therefore not been legally acknowledged and, consequently, the demonstration of workers organized by the trade union calling for the respect of the right to work, establishment of working hours and wage increases, was not lawful. Acts of violence were committed during the strikes, urged on by the trade union, which is contrary to section 1 of the Act on demonstrations. The trade union also infringed the right to private property, which is contrary to article 44 of the Constitution. The exercise of rights and freedom by any individual should not adversely affect the rights and freedoms of others. The exercise of such rights must be in accordance with the law (article 31 of the Constitution). The right to strike and to non-violent demonstration must be exercised in the framework of the law (article 37) and legal private ownership is protected by law (article 44).

116. The SLORC was set up before the new Labour Code had been issued. Before carrying out any activities, it therefore had to receive previous authorization from the director of the factory and the competent authorities. According to the disputes settlement procedure, the workers, employers and representatives of the Ministry of Labour are parties recognized as those authorized to settle a dispute. The security forces only intervene if the dispute causes a public disturbance and is accompanied by acts of violence. The presence and activities of the police and security forces in these three factories were therefore justified. To maintain public law and order, the police may arrest any demonstrator resorting to violence and take appropriate measures to break up demonstrations by using, for example, water cannons in accordance with provisions in the legislation on demonstrations. No worker was injured or mistreated. Mr. Lam Han and Mr. Vong Saroeun were only detained for a very short time. The competent authorities showed considerable restraint because they did not sentence the guilty or the persons who had encouraged workers to take violent action.

117. The Government expresses the hope that, thanks to the technical assistance of the International Labour Office, it will be able to make up for its shortcomings and embark on a gradual process of development which will be in the interest of workers.

C. The Committee's conclusions

118. The Committee notes that the allegations concern the violation of the right to establish freely trade unions and the right to strike and collective bargaining, dismissals of trade union members and pressure and threats against these trade unionists.

119. The Committee notes that the Government, although it has not yet ratified Conventions Nos. 87 and 98, states that it respects the principles contained therein and refers, in a detailed way, to a number of provisions in these Conventions in its reply.

120. The alleged events occurred against a background of particularly difficult working conditions as the country was engaged in an economic drive, and attempts were being made to attract investors in some new development sectors. The Government has acknowledged that there were abuses in working conditions and states that measures were taken to put these right.

121. The Government points out that labour legislation is a recent phenomenon in Cambodia, that knowledge of the laws, experience and practice in this area are as yet inadequate and that the number of labour officials and the means available to them have not been able to keep pace with the rapid developments in the economy and the world of work. The Committee notes with interest that the Government has expressed the intention of remedying the shortcomings with the technical assistance of the International Labour Office.

122. The Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) was set up in December 1996. According to the complainant, a number of employers refused the trade union the right to exist, whereas others refused to recognize it on the grounds that it was an illegal organization. Furthermore, as soon as the trade union was set up, repressive measures were taken against the trade union officials and members. According to the Government, SLORC is led by the president of an opposition political party and the name, activities and objectives of this trade union are closely bound up with this party; the trade union's activities, which are sometimes violent, are not intended to defend the workers' interest but to pursue political objectives. As SLORC was set up before the new Labour Code was issued, it had first to receive previous authorization from the factory director and the competent authorities before it could carry out its activities. The Government states that since the Labour Code has been issued, the trade union has failed to apply the provisions concerning the registration of trade union rules.

123. On the basis of the documentation at its disposal, the Committee notes that the trade union in question was set up in December 1996 by more than 100 workers in clothing factories and that it now has a large number of members. The Committee notes that it is the first trade union to be set up in the clothing sector and that those employed in this industry are amongst its officials. According to the documents provided by the Government, the president of the trade union informed the Deputy Director of the Labour Inspectorate that the trade union, set up on 15 December 1996 with the help of Mr. Rainsy, had as its objective to defend the rights and freedoms of workers and to request, amongst other things: an increase in wages; a cut in weekly working hours; benefits in the event of sickness or pregnancy; and some control over dismissals. Furthermore the trade union had been set up at national level and had no political leanings. The Committee points out that the claims thus put forward by the trade union concerned working conditions and wages and that its activities, supported by a large number of workers, are those normally pursued by a trade union organization which operates to defend and promote the interests of its members. The Committee also notes that the trade union started negotiations which, in some enterprises, resulted in agreements on wages and working conditions.

124. From the information contained in the file, the Committee understands that the events which prompted the complaint, particularly the setting up of SLORC, occurred during a transitional period when the new labour legislation was about to be adopted and that it entered into force only three months later. The Committee nevertheless feels bound to recall that the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the principles of freedom of association provided that these regulations do not impair the guarantees laid down in Convention No. 87. However, if the failure to register resulted in a trade union being made illegal, this would be tantamount in practice to subjecting the registration of trade unions to previous authorization, and one of the basic principles of association is the right of workers to establish freely organizations of their own choosing, without previous authorization. The Committee also recalls that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. [See Digest of Decisions and Principles of the Committee on Freedom of Association, 4th edition, 1996, para. 24.]

125. In these circumstances, and noting that the new Labour Code does not appear to impose obstacles to the establishment and operation of trade unions, the Committee expresses the firm hope that the Government is now in a position to put the situation aright, thus allowing the employers' and workers' organizations to fulfil their functions. The Committee therefore asks the trade union to deposit its rules with the competent authority and the Government to take the necessary measures to ensure that the organization is registered without delay.

126. According to the complainant, a number of employers refused to negotiate with the trade union on the grounds that it was an illegal organization. In this respect, the Government points out that, in accordance with previous legislation, only staff delegates were acknowledged to be lawful representatives of the workers and that refusal to negotiate cannot therefore be held against the employer. According to a document provided by the Government, the representative for the Ministry of Labour stated to the SLORC officials, at a meeting on 18 December 1996, that the legislation did not yet allow the setting up of trade unions but that the employees could make their claims and put forward their interests through the staff delegates who had already been elected. He requested the officials of the trade union to give up their trade union activities temporarily until the new Labour Code had been adopted. The Committee notes that the Government, in an "appeal" of 27 December 1996, states that the staff delegates, who should be urgently elected in agreement with the employers, are "the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code".

127. In this context, the Committee feels bound to stress that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of the occupational interests of their members. [See Digest, op. cit., para. 447.] In this respect, by giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to recognize the right of trade unions to promote and defend the rights and interests of workers; the Committee concludes that this prevented the trade union from organizing its activities and operating and even undermined its very existence. Furthermore, the principles contained in the Workers' Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), guarantee that, where there exist in the same enterprise both trade union representatives and elected representatives, appropriate measures should be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned and to encourage cooperation between the elected representatives and the trade unions and their representatives [see Digest, op. cit., para. 787]. By giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to take all the necessary measures to prevent the existence of delegates undermining the position of the newly established trade union or to encourage cooperation between both sets of representatives. Furthermore, the Committee feels that by stating that the delegates were the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code, the Government failed to apply the principle of the right to bargain collectively, whereby measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. [See Digest, op. cit., para. 781.]

128. In these circumstances, the Committee requests the Government to take the necessary measures so that the trade unions can promote and defend the interests of workers, especially by means of collective bargaining on working conditions, in line with the principle recalled above. The Committee requests the Government to take the necessary measures to ensure that the SLORC can negotiate working conditions in the clothing sector with the employers in this sector.

129. As concerns the right to strike, the Committee notes that strikes took place in three enterprises and that they were backed or extended by demonstrations in public places. The complainant alleges that the Government and employers called upon the security forces to intervene on a large scale to put down the strikes in the factories and during peaceful demonstrations, and that persons were injured as a result of the ensuing violence. As for the Government, it states that the organization of strikes and demonstrations by the SLORC had been outside the law. Acts of violence had been committed during the strikes and demonstrations at the instigation of the trade union, which had violated the Act on demonstrations. The Committee notes that this law stipulates, amongst other things, that the authorities must be informed in writing three days in advance by the organizers of demonstrations. The Committee notes that according to the Government, no worker was injured or mistreated and that two persons, who had been arrested, Mr. Lam Han and Mr. Vong Saroeun, were only detained for a very short time and subsequently released.

130. The Committee is unable to determine on the basis of the file submitted by the complainant, whether the measures taken by the Government were intended to break the strike, even if their aim was to put an end to the demonstrations in a public place and to disperse the demonstrators; the Committee does not have adequate information to determine the origin and seriousness of the violence which occurred during the demonstrations.

131. The Committee nevertheless recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [See Digest, op. cit., para 475] and that the right to organize public meetings constitutes an important aspect of trade union rights. However, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends. [See Digest, op. cit., para. 133.] Furthermore, the Committee stresses that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [See Digest, op. cit., para. 77.]

132. Concerning the dismissal of 13 workers, on 18 January, when work was resumed in the Tack Fat Garment factory after it had been on strike, the Committee notes that, according to the complainant, the grounds for these dismissals were false and that the persons concerned were actually dismissed for having taken part in industrial action. The Committee notes that the Ministry of Labour sent an inspection group to the enterprise in July 1997 to gather information on the 13 dismissals. The Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. [See Digest, op. cit., para. 593.] The Committee is of the opinion that if it were proven that there were some basis in the allegations that workers were dismissed for taking part in a strike, this could constitute a serious violation of the principles of freedom of association. The Committee notes the information given by the Government regarding the reasons for these dismissals and that this provides evidence of their anti-union nature. In these circumstances, the Committee requests the Government to undertake an in-depth inquiry into these dismissals with a view to the reinstatement in their jobs of these workers determined to be the object of anti-union discrimination and to keep it informed of the measures taken in this respect.

133. The Committee notes that the Goverment has confirmed the temporary detention of Ms. Mary Ou, Ms. Om Navy and Ms. Phuong Sophon. In this respect, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association. [See Digest, op. cit., para. 70.]

134. Furthermore, the Committee notes that the Government referred in its reply to the complaints submitted to the Ministry of Labour concerning the compensation for dismissals in three cases "concerning trade union activities". The Committee recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. [See Digest, op. cit., para. 707.] The Committee requests the Government to submit full information on the three cases of anti-union discrimination to which it referred in its response and specify the circumstances of these dismissals and the outcome of the complaints in question; it also requests the Government to communicate the decision of the Ministry.

135. The Committee notes that, according to the complainant, the workers were the victims of brutal behaviour, had their integrity undermined, suffered bad treatment and were assaulted and humiliated in their factories. The Labour Inspectorate intervened with the employers and ordered that damages be awarded to the women workers who had lodged a complaint that they had had to undergo a body search. As regards the insults, blows and humiliations meted out, the Committee points out that the complainant refers to the fact that the Secretary of State called the employers to order and that the Prime Minister made statements calling for the respect of national honour. The Committee feels it relevant to emphasize once again the importance to be attached to the basic principles set out in the Universal Declaration of Human Rights, considering that their infringement can adversely affect the free exercise of trade union rights. [See Digest, op. cit., para. 32.] On many occasions, the Committee has emphasized the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties. In particular, the Committee has considered that all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind. [See Digest, op. cit. para. 36.] Facts imputable to individuals incur the responsibility of States because of their