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Governing Body
 

GB.271/9
271st Session
Geneva, March 1998

NINTH ITEM ON THE AGENDA

309th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1924 (Argentina): Definitive report

Case No. 1945 (Chile): Report in which the Committee requests to be kept informed of developments

Case No. 1787 (Colombia): Interim report

Case No. 1916 (Colombia): Report in which the Committee requests to be kept informed of developments

Case No. 1925 (Colombia): Report in which the Committee requests to be kept informed of developments

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

Case No. 1938 (Croatia): Report in which the Committee requests to be kept informed of developments

Case No. 1933 (Denmark): Definitive report

Cases Nos. 1851 and 1922 (Djibouti): Interim report

Case No. 1876 (Guatemala): Report in which the Committee requests to be kept informed of developments

Case No. 1936 (Guatemala): Report in which the Committee requests to be kept informed of developments

Case No. 1940 (Mauritius): Report in which the Committee requests to be kept informed of developments

Case No. 1913 (Panama): Definitive report

Case No. 1852 (United Kingdom): Report in which the Committee requests to be kept informed of developments

Case No. 1912 (United Kingdom/Isle of Man): Report in which the Committee requests to be kept informed of developments

Case No. 1843 (Sudan): Report in which the Committee requests to be kept informed of developments

Case No. 1812 (Venezuela): Interim report

Case No. 1828 (Venezuela): Definitive report

Case No. 1937 (Zimbabwe): Report in which the Committee requests to be kept informed of developments

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 12, 13 and 19 March 1998, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, Panamanian and Zimbabwean nationalities were not present during the examination of the cases relating to Argentina (Case No. 1924), Panama (Case No. 1913) and Zimbabwe (Case No. 1937), respectively.

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3. Currently, there are 55 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 20 cases on the merits, reaching definitive conclusions in 15 cases and interim conclusions in five 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. 1943 (Canada/Ontario), 1944 (Peru), 1947 (Argentina), 1948 (Colombia), 1949 (Bahrain), 1950 (Denmark), 1951 (Canada/Ontario), 1952 (Venezuela), 1953 (Argentina), 1954 (Côte d'Ivoire), 1955 (Colombia) and 1956 (Guinea-Bissau) because it is awaiting information and observations from the Governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1869 (Latvia), 1873 (Barbados) and 1942 (China/Special Administrative Region of Hong Kong).

Partial information received from governments

6. In Cases Nos. 1835 (Czech Republic), 1927 (Mexico), 1934 (Cambodia) and 1939 (Argentina) 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

7. As regards Cases Nos. 1773 (Indonesia), 1867 and 1887 (Argentina), 1880 and 1906 (Peru), 1888 (Ethiopia), 1914 (Philippines), 1928 (Canada/Manitoba), 1929 (French Guyana), 1930 (China), 1931 and 1932 (Panama), 1941 and 1946 (Chile), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

8. As regards Cases Nos. 1884 (Swaziland) and 1935 (Nigeria), the Committee observes that, despite the time which has elapsed since the submission of these complaints or the last examination of these cases, it has not received observations from the Governments concerned. The Committee draws the attention of the Governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, if their observations or information have not been received in due time. The Committee accordingly requests these Governments to transmit their observations or information as a matter of urgency.

Serious and urgent cases which the Committee especially
draws to the attention of the Governing Body

9. The Committee considered that it should especially draw the Governing Body's attention to certain cases due to the seriousness and urgency of the issues raised in them. These cases concern the following countries: Colombia (Case No. 1787), Nigeria (Case No. 1793) and Sudan (Case No. 1843).

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Transmission of cases to the Committee of Experts

10. 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: Sudan (Case No. 1843), United Kingdom/Isle of Man (Case No. 1912).

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

Case No. 1900 (Canada)

11. During its last examination of this case at its meeting in November 1997, the Committee requested the Government to take the necessary measures to ensure that agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors all enjoyed the protection necessary to establish and join organizations of their own choosing and called upon the Government to re-certify those organizations which were decertified under Bill 7. The Committee requested the Government to ensure that the right to strike not be denied to agricultural and horticultural workers, domestic workers, architects, land surveyors and lawyers, and to ensure adequate compensatory guarantees where this right may be restricted in respect of the medical profession. The Committee also called upon the Government to take the necessary measures to guarantee access for all the above-mentioned workers to machinery and procedures which facilitate collective bargaining, and to revalidate the collective agreements which had been annulled under Bill 7. Finally, the Committee requested the Government to take measures to ensure that the right to organize and collective bargaining rights are adequately protected in building services and to keep it informed in this regard. [See 308th Report, para. 194.]

12. In a communication dated 30 January 1998, the Government indicates that a decision was rendered on 9 December 1997 by the Ontario Court with respect to an appeal made on behalf of the United Food and Commercial Workers International Union (UFCW) to have Bill 7 declared unconstitutional on the ground that it violated the Canadian Charter of Rights and Freedoms in its repeal of the Agricultural Labour Relations Act, 1994. This judgement concludes that the exclusion of agricultural workers from Ontario's statutory labour relations scheme does not violate their freedom of association, or their right to equal protection and equal benefit of the law, guaranteed by the Charter. The UFCW has appealed this decision to the Ontario Court of Appeal, and the Government indicates that it will keep the Committee informed of further developments in this case.

13. The Government reiterates that the unique characteristics of, and the nature of employment in, the agricultural sector are such as to raise serious questions as to the suitability and propriety of the regime of collective bargaining contemplated by the Labour Relations Act, in particular the dispute resolution mechanisms upon which collective bargaining depends, namely the right to strike and lock-out, and compulsory arbitration. Agriculture in Ontario is overwhelmingly dominated by family farms, and the agricultural sector is characterized by extremely low-profit margins and unstructured, highly personal working relationships. Moreover, employers in this sector are dependent on climatic conditions and seasonal variations and produce highly perishable products. Accordingly, the Government indicates that it does not intend to amend legislation to remove the exclusion of agricultural workers from any statutory labour relations scheme.

14. In conclusion, the Government reiterates its strong commitment to free collective bargaining both in the public and private sectors of Ontario. Bill 7 has established the appropriate balance of power between unions and employers and has facilitated productive collective bargaining, which the Government views as an important component of its strategy to strengthen the economy and create jobs.

15. The Committee notes this information with regret. It must reiterate the conclusions made in this case concerning agricultural workers in its 270th Report and the corresponding recommendations. Furthermore, the Committee notes with concern that the Government has only provided information in reply to its recommendations as they concern agricultural workers, but has not made any indication as to the measures taken to ensure the right to organize, the right to strike (or relevant compensatory guarantees) and the right to bargain collectively with respect to domestic workers, architects, dentists, land surveyors, lawyers and doctors. The Committee requests the Government to keep it informed of any developments in respect of these categories of workers and to indicate whether any measures are envisaged to ensure the rights of agricultural workers either through the Labour Relations Act or through other appropriate means.

Case No. 1910 (Democratic Republic of the Congo)

16. At its June 1997 meeting, the Committee, when examining allegations concerning the Government's interference in the process of collective bargaining at the Marsavco-Zaire enterprise, stressed the importance it attached to respect for Article 4 of Convention No. 98 and requested the Government to keep it informed of the outcome of the negotiations in the enterprise concerned [see 307th report, para. 176(b)]. In a communication dated 8 October 1997, the Government informs the Committee that the Government of the previous regime had already dealt with the situation before the Third Republic had been proclaimed. The Government also points out that the union rights in the enterprise in question have been restored, in accordance with the provisions of the Labour Code in force. The Committee notes this information.

Case No. 1594 (Côte d'Ivoire)

17. At its June 1997 meeting, the Committee had asked the Government to state whether the workers dismissed at Irho-Lamé in 1993 who considered that their rights had been impaired had appealed to the courts to have those rights restored, and to ensure that the social elections at the Autonomous Port of Abidjan were held immediately and to keep it informed of the outcome thereof. [See 307th Report, paras. 23-25.] In a communication dated 23 January 1998, the Government explains that the workers dismissed at Irho-Lamé have not appealed to the courts to have their rights restored and that it considers the case to be closed. The Committee notes this information with regret and insists that the Government take the necessary measures to ensure that the workers concerned are reinstated if they so desire. As regards the social elections at the Autonomous Port of Abidjan, the Government repeats the information provided previously whereby the first-level trade unions consider it necessary to draw up a dockers' collective agreement before considering social elections, which was confirmed by six of the seven first-level trade unions attending a meeting held on 21 January 1998 at the premises of the Trade Union of Dockers of the Autonomous Port of Abidjan (SEMPA). The Committee again requests the Government to do all it can to ensure that social elections are held as soon as possible in the Autonomous Port of Abidjan and to make sure that the first-level organizations affiliated to the trade union confederation Dignité are able to participate in them. It once again asks the Government to keep it informed of the outcome of these elections.

Case No. 1918 (Croatia)

18. At its June 1997 meeting, having considered allegations concerning a dispute relating to the leadership of the Confederation of Independent Trade Unions of Croatia (CITUC) and obstacles to the registration of this organization, the Committee requested the Government to submit further information with respect to the jurisdiction of the Administrative Court regarding the leadership dispute and the refusal to register, to keep it informed of the status of the proceedings before the Administrative Court and to forward a copy of the Court's decision as soon as it is handed down [see 307th Report, para. 252]. In a communication dated 7 November 1997, the Government sent information relating to the jurisdiction of the Administrative Court and explained that this Court has not yet handed down its sentence in respect of the appeal lodged against the decision of the Ministry of Labour and Social Welfare concerning the refusal of the CITUC's request for registration. The Government also stated that it has transmitted the Committee's recommendation to the Administrative Court. The Committee notes this information. The Committee expresses the hope that this process will shortly be concluded and requests the Government to send it a copy of the sentence as soon as it is handed down.

Cases Nos. 1512 and 1539 (Guatemala)

19. At its November 1997 meeting, the Committee asked the Government to keep it informed periodically of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-1994) [see 308th Report, para. 394(b)]. In communications dated 28 January and 26 February 1998, the Government indicates that the Commission will pursue its work for a period of six months and will submit a report which will be transmitted to the Committee. The Committee notes this information and awaits receipt of the report.

Case No. 1890 (India)

20. At its meeting in June 1997, the Committee requested the Government: to keep it informed of the outcome of the request filed with the Industrial Tribunal for approval of the dismissal of Mr. L. Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), and to ensure that he is reinstated in his post, if he so desires; to take appropriate steps to ensure that the ongoing inquiries held by the Beach Resort against the 15 FABREU members who went on strike are dropped; to repeal the decision declaring the hotel industry a public utility service; to take appropriate conciliatory measures to obtain the management's recognition of FABREU for collective bargaining purposes [see 307th Report, para. 376].

21. In its communication of 6 February 1998, the Government indicates that the dispute concerning Mr. Malwankar has been referred to the Industrial Tribunal for adjudication, but that it has been delayed because Mr. Malwankar has sought seven adjournments. While awaiting the award, the Government has assured that a decision in favour of Mr. Malwankar will be enforced. As concerns the 15 FABREU members who were the subject of management inquiries, the Government indicates that seven are under suspension pending inquiry and are being paid subsistence allowances. In these circumstances, the conciliation machinery cannot intervene as it does not constitute an industrial dispute. Transfer orders were issued with respect to the other eight members which they have refused. These members have raised an industrial dispute on this question and requested the withdrawal of the transfer orders. The report of the conciliation failure has been received by the Government and further action will follow. In the meantime, the Labour Commissioner called the union representatives for discussions in order to explore the possibility for an amicable settlement. The proposal made by the Commissioner that they take up their changed posting and then request to be transferred back to their original posting so that the Commissioner could take the matter up again with the employer was rejected. While demanding the total implementation of the Committee's recommendation, the union indicated that it was prepared to undertake joint discussions with the employers.

22. The Government also indicates that the declaration of an industry as a public utility service is at the discretion of the appropriate government. While the Government of Goa used this discretion in the interest of peace and harmony in tourism which is a key industry for the State, it should be noted that the declaration of an industry as a public utility service does not mean that strike is prohibited in this industry. The only restriction concerning strikes in such industries is that 14 days' strike notice must be given. Finally, as concerns the question of recognition of FABREU for collective bargaining purposes, the Government indicates that the Labour Commissioner discussed the matter with the management which indicated that it has recognized the Fort Aguada Association because it is the majority union. The Government adds that FABREU nevertheless may still raise disputes with the Labour Department.

23. The Committee takes due note of this information. It requests the Government to continue to keep it informed of the outcome of the proceedings concerning the dismissal of Mr. Malwankar and, given the Committee's conclusions in its previous examination of this case that Mr. Malwankar was dismissed on account of his trade union status and activities [see 307th Report, para. 369], it urges the Government once again to take the necessary steps to have him reinstated in his post if he so desires. As concerns the management inquiries in respect of 15 FABREU members, the Committee, recalling its previous conclusions that these inquiries and transfer orders constituted anti-union discrimination [see 307th Report, para. 372], requests the Government to take the appropriate steps to ensure that they are dropped. As concerns the recognition of FABREU as collective bargaining agent, the Committee recalls its previous conclusions based on the information provided by both the Government and the complainant that FABREU was the most representative organization at the Fort Aguada Beach Resort. The Committee must therefore once again urge the Government to continue to take any appropriate measures to obtain the employer's recognition of FABREU for collective bargaining purposes and to keep it informed of any progress made in this regard.

Case No. 1920 (Lebanon)

24. At its meeting in November 1997, the Committee requested the Government to indicate whether the contested results of the elections of the officials of the General Labour Confederation of Lebanon (CGTL) on 24 April 1997 was currently the subject of judicial recourse and to keep it informed of the results of any such proceedings. Furthermore, as concerns the arrest of trade union leaders Mr. Abou-Rizk and Mr. Yasser Nehmi and their subsequent prosecution, the Committee urged the Government to do everything in its power to ensure that the charges brought against them were withdrawn immediately. [See 308th Report, para. 525.]

25. In a communication dated 9 January 1998, the Government indicated that the Beirut Court had rejected, for error in form, the appeal to annul the CGTL elections. The appeal was considered not receivable for non-conformity with the law since the executive board of the complainant union had not introduced legal action.

26. The Committee notes this information. It observes that the Government has not provided any information on the situation of Mr. Abou-Rizk or Mr. Yasser Nehmi. The Committee is obliged once again to express its deep concern regarding the prosecution undertaken against these two trade union leaders, in particular given that the charges appear to be directly linked to the fact that they submitted a complaint to the ILO. The Committee urges the Government to do everything in its power to ensure that the charges are immediately withdrawn. It requests the Government to keep it informed of any developments in this situation.

Case No. 1793 (Nigeria)

27. During its examination of this case in November 1997, the Committee found itself obliged to deplore the fact that, for nearly three years, the Government has consistently evaded responding to the urgent calls for a mission. The Committee added that a new complaint had been submitted against the Government of Nigeria alleging the adoption of further anti-union decrees and detention of unionists (Case No. 1935). The Committee therefore reiterated in the strongest possible terms the calls which have been made to the Government to indicate, as a matter of urgency, the earliest dates in which a mission to examine the trade union situation in Nigeria could be received. [See 308th Report, paras. 51-53.]

28. In a communication dated 4 February 1998, the Government indicated that it would transmit its reply concerning this case on 20 February 1998. On 20 February 1998, the Government sent a letter indicating that it would reply on 24 February 1998. No further information has since been received from the Government.

29. In these circumstances, the Committee must express its outrage at the manner in which the Government has repeatedly ignored not only its own calls for a mission to examine the trade union rights situation in the country and to visit trade unionists detained without trial, at least one of whom has been detained for over three years, but also the additional urgent calls emanating directly from the Governing Body in this respect. The levity displayed by the Government in this respect can only be viewed by the Committee with the greatest concern. Given the persistent lack of cooperation on the part of the Government in this case, the Committee considers that other types of action should be taken in order to enable some progress in the very serious matters raised in this case.

Case No. 1698 (New Zealand)

30. At its meeting in June 1997, the Committee noted information provided by the Government concerning a coalition agreement to introduce the concept of "fair bargaining" into the Employment Contracts Act (ECA) and requested the Government to keep it informed of any progress made in this regard. Furthermore, the Committee reiterated its previous conclusions concerning section 63(e) of the ECA and recalled that the determination of the bargaining level was a matter to be left to the discretion of the parties and that legislation should not constitute an obstacle to collective bargaining at the industry level. It reiterated therefore that workers and their organizations should be able to call for industrial action in support of multi-employer contracts and requested the Government to keep it informed of any measures taken in the future to amend section 63(e) in this respect.

31. In a communication dated 28 October 1997, the Government indicated that it was continuing to work through the process of identifying issues relating to bargaining, particularly recognition of the employees' representative, which have been raised by the experience with the ECA since its introduction. Options for addressing these issues will then be developed and considered by the Government before any legislation is considered. As concerns section 63(e), the Government indicates that no measures are being considered and reaffirms that it is a matter of government policy not to allow the use of strikes or lockouts to secure a multi-employer collective employment contract. Multi-employer contracts should be agreed as a result of willing employer-employee bargaining, not by enforced industrial action. Finally, the Government provided information on recent cases concerning the application of the ECA.

32. The Committee takes note of this information. It requests the Government to keep it informed of any progress made in introducing the concept of "fair bargaining" into the legislation. As concerns section 63(e) of the ECA, while reaffirming the principle that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 1994, para. 844] the Committee considers that this question is distinct from that of the legitimacy of strike action in support of multi-employer contracts. The Committee cannot share the views expressed by the Government that the voluntary nature of collective bargaining means that industrial action cannot be used to support legitimate workers' demands. It therefore once again recalls its conclusions in this case that provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike [see 292nd Report, para. 737] and again requests the Government to amend section 63(e) and to keep it informed of any measures envisaged in this respect.

Case No. 1891 (Romania)

33. At its November 1997 meeting [see 308th Report, paras. 72-74], the Committee had asked the Government to send it a copy of the new law on the settlement of labour disputes once it had been adopted and to indicate whether the human rights committee set up by the Ministry of the Interior had been charged with investigating the particular allegations raised in the case, and to keep it informed regarding the results of such investigations. In a communication dated 21 January 1998, the Government states, once again, that the draft law on the settlement of labour disputes was submitted to the social partners and that the text will be sent to the ILO once it is adopted. Furthermore, it indicates that the particular allegations raised in this case were not referred to the human rights committee but that any citizen who considers that his rights have been infringed by police action may bring a complaint before the committee which will refer it to the military prosecutor's office if there has been a breach of the law. The Committee notes this information and once again expresses the hope that a new law on the settlement of labour disputes in accordance with the principles of freedom of association will be adopted very soon and that the Government will send it a copy as soon as possible.

Case No. 1618 (United Kingdom)

34. At its meeting in November 1997, the Committee urged the Government to give consideration to the incorporation of an express protection in the legislation against blacklisting. [See 308th Report, paras. 75-77.]

35. In a communication dated 9 February 1998, the Government states that, while it is not yet in a position to know whether blacklisting will definitely be covered, it is intending to publish a White Paper on fairness at work, and principally on trade union recognition, in the first part of this year. The White Paper will set out the Government's plans for achieving decent minimum standards at work, while maintaining a flexible labour market and improving competitiveness. The Government adds that it is keen to hear from trade unions, employers' organizations and others to ensure the White Paper takes account of their views.

36. The Committee takes note of this information. It requests the Government to keep it informed of any progress made in providing for an express protection in the legislation against blacklisting or other forms of discrimination based on past trade union membership or activities.

Case No. 1581 (Thailand)

37. At its meeting in November 1997, 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 308th Report, paras. 78-80]. In a communication dated 5 February 1998, the Government has indicated that the original Bill which was passed by the House of Representatives was subsequently substantially revised by the Senate. As a result, the House has disapproved the modified Bill which, inter alia, provides for a minimum requirement of 35 per cent membership for the formation of a union in a state enterprise, limits the term of office of the union's president, provides that general meetings shall only be held on public holidays and does not recognize the right to form a federation or to affiliate with a private sector federation. According to the Government, if the House resolves to reaffirm the original Bill or the Bill subsequently amended by a Joint Ad Hoc Committee consisting of members of the House and Senators, such Bill will have been deemed to have been approved by Parliament.

38. The Committee notes this information. It expresses its deep concern that the modifications made to the Bill by the Senate would result in a deterioration of trade union rights for state enterprise unions even beyond the existing Bill which was criticized in 1991 for violating the principles of freedom of association [see 279th Report, paras. 441-482]. The Committee urges that all necessary measures be taken so that the Bill, in its final form, will be in conformity with the principles of freedom of association and requests the Government to keep it informed of any progress made in this regard and to provide a copy of the Bill once it has been adopted.

Case No. 1856 (Uruguay)

39. At its meeting in March 1996, the Committee formulated the following recommendation on this case: "Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses SA 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 the subject" [see 302nd Report, para. 439]. At its meeting in November 1996, the Committee took note of the Government's statements according to which the General Inspectorate for Labour and Social Security was beginning an investigation into the allegations [see 305th Report, paras. 64 and 65]. Subsequently, in a communication of 5 March 1997, the Government stated that the investigation was at the evidence-gathering stage, i.e. was in the process of receiving and collecting the evidence submitted to it by the parties involved, mainly in the form of testimonial evidence, and that it had not yet reached any definitive conclusions on the matter. The Government added that when the administrative procedure reached its final stage, it would inform the Committee of its findings.

40. At its meeting in November 1997 [see 308th Report, paras. 81-83], the Committee took note of this information and, since the inquiry had already taken one year, expressed the hope that the administrative authority would expedite the matter and requested the Government to take steps to that end. The Committee awaited the final outcome of the inquiry.

41. In its communication of 21 January 1998, the Government states that during the evidence- gathering stage of the inquiry into the dismissals in question, one purpose of which is to allow the parties to substantiate their respective positions, only the defendant company, Perses SA, had presented itself, the Peres SA Staff Association having failed to do so. The Government also states that the information collected during the proceedings is insufficient to allow definitive conclusions to be reached on the content of the complaint, and the General Inspectorate for Labour and Social Security was therefore withdrawing the file.

42. The Committee takes note of this information and regrets that the Peres SA Staff Association did not present itself at the evidence-gathering stage of the inquiry requested by the Committee. Under these circumstances, given that the allegations date back to April 1995 and taking into account the lack of interest shown in the case by the complainant organization, the Committee will not pursue its examination of the allegations.

Case No. 1886 (Uruguay)

43. At its meeting in May 1997 the Committee, when examining allegations of anti-union discrimination arising from the nomination of only non-union members to executive positions within Lloyds Bank, requested the Government to send the text of the Administrative Court's ruling on the matter as soon as it was handed down [see 307th Report, para. 470(c)]. In a communication of 23 January 1998, the Government states that no final ruling on the matter has been handed down, since the proceedings are still at the submissions stage during which the plaintiff (Lloyds Bank Limited) presents its case, and the State Prosecutor will have to go to the Administrative Court at a later date. Finally, the case will be examined by the Judges of the Court who will then give a ruling. The Government states that it will inform the Committee of the outcome of the proceedings. The Committee takes note of this information. It expresses the hope that these proceedings, which began about a year and eight months ago (in June 1996) will be concluded shortly and requests the Government to send it a copy of the ruling as soon as it is handed down.

* * *

44. Finally, as regards Cases Nos. 1719 (Nicaragua), 1796 (Peru), 1809 (Kenya), 1819 (China), 1824 (El Salvador), 1826 (Philippines), 1834 (Kazakhstan), 1837 (Argentina), 1849 (Belarus), 1850 (Congo), 1854 (India), 1863 (Guinea), 1864 (Paraguay), 1870 (Congo), 1877 (Morocco), 1883 (Kenya), 1894 (Mauritania), 1903 (Pakistan), 1921 (Niger) and 1926 (Peru), 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. In addition, the Committee has just received information concerning Cases Nos. 1785 (Poland), 1813 and 1878 (Peru), 1895 (Venezuela), 1907 (Mexico) and 1908 (Ethiopia) which it will examine at its next session.

 

 Case No. 1924

Definitive Report

Complaint against the Government of Argentina
presented by
the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA)

Allegations: Refusal to grant official trade union status

45. The complaint in this case is contained in a communication dated 1 April 1997 from the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA). Subsequently, the complainant sent further information in another communication during June 1997. The Government sent its observations in communications dated 9 October 1997 and 11 February 1998.

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

A. The complainant's allegations

47. In its communications of 1 April and June 1997, the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA) states that it was established in 1990 (as is apparent from the organization's Statutes which are attached to the complaint) and that, there being no other trade union organization for workers involved in this area of activity, it applied to the authorities in 1993 for official trade union status but did not obtain an affirmative response. The complainant provides detailed information and abundant documentation on the administrative and judicial procedures which it had initiated, to no avail, to obtain official trade union status.

48. Lastly, the complainant states that in 1994, the United Trade Union of Workers and Employees of Córdoba (SUOEM) appealed to the administrative authorities to oppose the granting of official trade union status to the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA).

B. The Government's reply

49. In its communications of 9 October 1997 and 11 February 1998, the Government states that the complainant has been registered as a trade union since 1992 but that it has not been granted official trade union status since it has not shown itself to be the most representative trade union. The Government attaches a Ministry of Labour report of March 1995 according to which official trade union status has not been granted to the complainant because it does not comply with the requirement of section 25(b) of Act No. 23551 concerning trade union associations (i.e. membership of more than 20 per cent of the workers whom the trade union wishes to represent). The Government also claims that in the Province of Córdoba, the most representative trade union to date is the United Trade Union of Workers and Employees of Córdoba (SUOEM), since virtually all workers involved with boilers, sterilizers, compressors, etc., are public municipal employees. Finally, the Government explains that the complainant did not even indicate whether it had 20 per cent of the workers as members which now it claims to represent.

C. The Committee's conclusions

50. The Committee notes that the present allegations refer to the refusal to grant "representative trade union status" which the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA) has been requesting since 1993 (under current legislation, only organizations which have representative status enjoy the right to enter into collective bargaining).

51. The Committee notes that the reply and the supporting documentation sent by the Government indicates that it has not granted official trade union status to the complainant because: (1) it does not meet, nor has it made any indication of, the requirement of a membership of more than 20 per cent of the workers whom it wishes to represent (section 25(b) of Act No. 23551); and (2) the most representative trade union in the Province of Córdoba to date is the United Trade Union of Workers and Employees of Córdoba (SUOEM).

52. In this connection, the Committee is unable in the light of available information to determine whether the membership of the complainant includes, as it claims to do, more than 20 per cent of the workers in its sector or whether or not it is the most representative organization, especially given that the allegations and the Government's reply do not indicate clearly the spheres of activity and geographical areas in which the complainant and the United Trade Union of Workers and Employees of Córdoba (SUOEM) exercise their right of representation.

53. Under these circumstances, and bearing in mind the period that has elapsed since the last census of the complainant's membership (1995), the Committee requests the Government to carry out such a census with a view to determining which of the two trade union organizations in question (the SCGVA or the SUOEM) is the more representative. If it finds that the complainant is the more representative, the Committee requests the Government to grant it official trade union status which it has been seeking since 1993.

54. Similarly, noting that it has already had occasion to criticize the provisions of Act No. 23551 (section 28) which requires the petitioning association, in order to contest the trade union status of an existing association, to have a "considerably higher" number of members [see 286th Report, Case No. 1551, paras. 47 to 50], and that the Committee of Experts on the Application of Conventions and Recommendations has also objected to the provision in question [see the pertinent observation of the Committee of Experts, Report III, Part 1A, 1998], the Committee requests the Government to take steps to amend the provision in question so that the criterion for the representativeness of trade unions becomes a simple majority of members.

The Committee's recommendations

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

(a) The Committee requests the Government to conduct a verification of membership percentages in order to determine which of the two trade union organizations in question (the Trade Union of National, Provincial, Municipal and Private Steam Generator Operators and allied Occupations (SCGVA) or the United Trade Union of Workers and Employees of Córdoba (SUOEM)) is the most representative. If it finds that the complainant is the most representative, the Committee requests the Government to grant it the official trade union status which it has been seeking since 1993.

(b) The Committee requests the Government to take measures to amend section 28 of Act No. 23551 concerning trade union associations, which requires the petitioning association, in order to contest the trade union status of an existing association, to have a "considerably higher" number of members, in such a way that the criterion for determining the representativeness of trade unions becomes a simple majority of members.

Case No. 1945

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

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

Allegations: Anti-union dismissals and prosecution
of trade unionists

56. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 6 November 1997.

57. The Government sent observations in a letter of 4 February 1998.

58. Chile has ratified neither 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

59. In its communication dated 6 November 1997, the International Confederation of Free Trade Unions (ICFTU) alleges that on 29 July 1997 the electricity company Rhona S.A. unilaterally terminated the contract of employment that it had with Mr. Eduardo Araos Herrera, Secretary of the Rhona S.A. National Union and Treasurer of the Metal Workers' Federation (FETEM). According to the ICFTU, this dismissal constitutes a serious violation of the provisions regarding workers' immunity established in the labour law of Chile and, consequently, the relevant trade union organizations instituted legal proceedings with a view to reversing the dismissal; at the same time they submitted a complaint to the labour administration in order to gain the union leader's reinstatement. Nevertheless, the judicial bodies and administrative authorities were overruled by the defiant attitude of Rhona S.A. officials who refused to implement the decisions taken by the National Labour Office which called for the reinstatement of the unfairly dismissed union leader. The ICFTU also alleges that Messrs. Sergio Cea Valenzuela, Sergio Silva Pérez and Jorge Muñoz Llanos, trade union leaders in Brink's of Chile, were unjustly dismissed -- despite trade union immunity -- on account of their action to establish a trade union within their company.

60. Moreover, the ICFTU alleges that when the Confederation of Bank Employees' Trade Unions organized a day of protest on 13 May 1997 in the Senate of the Republic as a show of that sector's disagreement with the Bill seeking to extend workdays to Saturdays, Sundays and public holidays, the workers were forcibly removed and, subsequently, Luis Pereira, Nicolás Soto and Luis Mesina, trade union leaders, were detained. These leaders were then released; however, the Senate initiated unprecedented criminal action against them on grounds of "contempt of authority"; they are thus currently the subject of judicial proceedings despite the repeated calls by trade unions and social organizations for the charges to be dropped.

B. The Government's reply

61. In its letter of 4 February 1998, the Government states that Mr. Eduardo Araos Herrera, leader of the Rhona S.A. union and of the Metal Workers' Federation (FETEM), was indeed dismissed by his employer without the relevant tribunal's prior authorization having been obtained, as stipulated by article 174 of the Labour Code. The employer justified the dismissal by stating that on the date of termination the worker was not a trade union leader. Officials of the labour inspectorate of Viña del Mar visited Rhona S.A. and instructed the employer to reinstate the worker and to fulfil all contractual obligations. Nevertheless, the company did not comply with the labour inspectors' instructions and declined to reinstate the worker. Given the circumstances, the trade union leader took the case to the competent labour tribunal, seeking the reversal of his dismissal and, therefore, reinstatement in the company. The case is at present before the Labour Tribunal of Viña del Mar.

62. With regard to the dismissal of Messrs. Sergio Cea Valenzuela, Sergio Silva Pérez and Jorge Muñoz Llanos, leaders of the Union of Employees of Brink's of Chile, V Region, the Government indicates that the said union was established on 10 May 1996 and elected the aforementioned leaders. The company refused to accredit them and proceeded to dismiss them. The Government adds that, in view of the fact that these workers enjoy trade union immunity and that the company had not obtained the competent labour tribunal's prior authorization of dismissal, the Labour Inspectorate of Viña del Mar visited Brink's of Chile, V Region, and instructed it to reinstate these workers. The company did not comply with the labour inspectors' instructions; the inspectorate subsequently imposed money fines. Given this situation, the workers instituted judicial proceedings on grounds of "anti-trade union practices" before the Labour Tribunal of Viña del Mar. The case was declared receivable and a judgement was passed in their favour on 27 September 1997. However, the company appealed to the High Court (Court of Appeal) which declared the former judgement null and void and ordered postponement of the proceedings for the purposes of preliminary investigation as requested by the company. The case is at present under examination before the First Labour Tribunal of Valparaíso.

63. The Government indicates that the Labour Office, as well as the labour inspectorate attached to it, have no legal powers to enforce its decisions. Their powers permit them only to apply money fines. It is labour tribunals which are competent, following regular legal proceedings heard by them, to order the reinstatement of dismissed workers enjoying trade union immunity.

64. In connection with the detention and prosecution for "contempt of authority" of leaders of the Confederation of Bank Employees' Trade Unions, Messrs. Luis Pereira Concha, Nicolás Soto Reyes and Luis Mesina Marín, the Government states that it consulted the Senate of the Republic (branch of the legislature); its President declared the following on 10 October 1997:

65. Finally, the Government indicates that any further factors coming to light shall be notified in due course.

C. The Committee's conclusions

66. With regard to the dismissal, despite trade union immunity, of trade union leaders in the Rhona S.A. enterprise (Mr. Araos Herrera) and Brink's (Messrs. Cea Valenzuela, Silva Pérez and Muñoz Llanos), the Committee notes that the labour inspectorate instructed the respective employers to reinstate the above-mentioned workers, that the employers refused to do so and that, consequently, legal action was initiated with a view to the reinstatement of the dismissed persons and that such action is at present sub judice. In this regard, given that Chilean legislation requires prior judicial authorization for the dismissal of trade union leaders and that it was not sought in the present case, the Committee deplores the dismissal of the four trade unionists listed by the complainant and recalls that no one should be the subject of discrimination in employment on account of trade union membership or legitimate union functions and activities. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1994, para. 749.] In this respect, the Committee urges the Government to take all the necessary measures for the reinstatement in their posts of the four trade unionists listed by the complainant. The Committee requests the Government to keep it informed of the outcome of the current legal action.

67. Regarding the action to clear the Senate chambers and the detention of Luis Pereira, Nicolás Soto and Luis Mesina, trade union leaders, as well as the criminal proceedings instituted against them on "contempt of authority" charges, the Committee has noted that, at present, these three trade union leaders are free and are awaiting the outcome of the court action. The Committee notes that, according to the Government and the report submitted by the President of the Senate, the action to clear the chambers, the detention and the initiation of criminal proceedings against them were due to repeated "gross" insults directed at certain senators during the debate on a Bill as well as due to disorderly behaviour designed to interrupt the speakers, despite warnings issued by the President of the Senate. In this regard, the Committee recalls that, in exercising their freedom of expression and in expressing their opinions, "trade union organizations should respect the limits of propriety and refrain from the use of insulting language" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 152]. The Committee requests the Government to keep it informed of the outcome of the current action against these trade union leaders.

The Committee's recommendations

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

(a) With regard to the dismissal, without court authorization, of trade union leaders in Rhona S.A. (Mr. Araos Herrera) and Brink's (Messrs. Cea Valenzuela, Silva Pérez and Muñoz Llanos) and, given that Chilean legislation requires prior court authorization for the dismissal of trade union leaders and that such authorization was not sought in the present case, the Committee deplores the dismissal of the four trade unionists listed by the complainant and urges the Government immediately to take measures for their reinstatement. It requests the Government to keep it informed of the outcome of the current legal action.

(b) Regarding the clearance of the Senate chambers, the temporary detention of Luis Pereira, Nicolás Soto and Luis Mesina, trade union leaders, and the initiation of criminal action against them on "contempt of authority" charges, the Committee, whilst noting the Government's statement that these facts were provoked by "gross" insults directed at certain senators during the debate on a Bill as well as by disorderly behaviour designed to interrupt the speakers, requests the Government to keep it informed of the outcome of the current action taken against these union leaders.

 

Case No. 1787

Interim Report

Complaint against the Government of Colombia
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Latin American Central of Workers (CLAT) and
-- the World Federation of Trade Unions (WFTU)

Allegations: Murders and other acts of violence against trade union
officials and members and anti-union dismissals

69. The Committee last examined Case No. 1787 at its March 1997 meeting [see 306th Report, paras. 248-294]. The International Confederation of Free Trade Unions (ICFTU) sent additional information in communications dated 3 February, 2 April, 5 May, 24 June, 16 and 23 July, 6 October and 6 November 1997 and 16 January 1998. The World Federation of Trade Unions (WFTU) presented new allegations relating to this case in a communication dated 23 January 1997. The Latin American Central of Workers (CLAT) sent additional information in a communication dated 6 August 1997.

70. The Government sent partial observations in communications dated 29 May, 24 July and 16 December 1997 and 13 February 1998.

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

A. Previous examination of the case

72. During the previous examination of the case, when it dealt with allegations concerning the murder, disappearance and other acts of violence against trade union officials and members, as well as anti-union dismissals, the Committee made the following recommendations [see 306th Report, para. 294, sections (g), (h), (i) and (j)]:

B. New allegations and additional information

73. In its communication of 23 January 1997 the World Federation of Trade Unions (WFTU) alleges that on the morning of 7 December 1996 Edgar Riaño, leader of the Workers' Trade Union (USO) -- Huila branch -- was violently detained on the orders of the Office of the Prosecutor General and two hours later Gilberto Correño was assaulted and seriously wounded. Two days earlier Isidro Segundo Gil, Secretary-General of the SINALTRAINAL subdirective and a member of the negotiating committee for the petition presented to the Coca-Cola company was murdered in his own workplace.

74. The WFTU alleges that in early December 1996 detentions and police raids were carried out this time on the express orders of the Office of the Prosecutor General. The following union members of ECOPETROL were violently detained: Marcelino Buitrago, Felipe Mendoza, Monerge Sánchez, Guillermo Cárdenas, Rafael Estupiñán, Jorge Estupiñán, Hernán Vallejo, Luis Rodrigo Carreño, Leonardo Mosquera, Fabio Liévano, Elder Fernández, Gustavo Minorta and César Carrillo.

75. In its communications of 3 February, 2 April, 5 May, 4 and 24 June, 16 and 23 July, 6 October and 6 November 1997 and 16 January 1998 the International Confederation of Free Trade Unions (ICFTU) alleges the following:

Murders and disappearances of trade union
officials and members

Death threats against union officials and members,
attacks on union headquarters and offices

Physical aggression and police repression

76. In a communication of 6 August 1997 the Latin American Central of Workers (CLAT) alleges that on Monday, 4 August at 18.30 p.m. in Aguachica (Department of César), David Quintero Uribe, President of the Workers' Union of the Multiactive Cotton Growing Cooperative of the Department of César Limited, was murdered.

C. Other allegations

77. In its communication of 16 January 1998, the ICFTU alleges that on 27 August 1997, the National Union of Banking Employees (UNEB) presented a list of demands to the Banking Association covering 30 entities in the banking sector and which would eventually benefit 40,000 workers. Since that date, the Association refused to act as the intermediary with respect to these 30 financial institutions. Nevertheless, after some discussions, some agreements were reached between the Banking Association and UNEB. The UNEB continued to negotiate with each one of the entities where there was representation. The UNEB, in the legal exercise of its trade union activities, programmed different activities such as marches, demonstrations, public information meetings and, through its publications, provided information on the dispute and the state of negotiations.

78. The ICFTU points out that the response of the employers of the banking entities, with the support of the forces of public order, was such as to impede the free exercise of trade union and information rights. Repressive measures were used, such as physical aggression, the locking up of union leaders in building elevators, the denial of access for union leaders to places where they met with workers to supply information, etc., going as far as to include the arbitrary detention of the UNEB leader, Carlos Romero, who was later released. Moreover, several UNEB leaders received letters and telephone calls making threats to their life.

79. According to the ICFTU, the repressive response of the employers was particularly notable in the Citibank and Andino Banks. Trade union leaders responsible for informing the employees of the developments in the dispute and the negotiations were obstructed from entering these banks, often with the use of the public forces. These obstacles were accompanied by threats and blackmail of dismissal of the workers if they listened to the information provided by the trade union leaders and if they exercised their constitutional rights of freedom of association.

80. Furthermore, Citibank continually incited and organized the customers and clients to attack union leaders who had arrived at its installations to inform the workers. These measures of repression and aggression had the complete support of the public forces of law and order which, on repeated occasions, trampled on several union members while forcibly removing them from the area. The Citibank offices in Santa Fe of Bogotá where repression of trade union activity was intensified are those branches at Puente Aranda, Barrio Chico, Barrio Cedritos and Jimenez Avenue. On 2 December 1997, the manager of this last branch took photos of several union leaders and workers. The use of these photographs is unknown. The practice of taking photographs and making video recordings by banking employers has become a very frequent practice to which the Sudameris and Anglo Colombiano banks have already had recourse.

D. The Government's reply

81. In communications of 29 May and 24 July 1997 the Government states that in connection with the allegations in the ICFTU communication of 5 May 1997 it has requested the First Office of the Prosecutor General to begin the investigations leading to the identification of those who committed the crimes mentioned, or if these investigations have already begun that those responsible be identified and tried under the provisions laid down by the existing laws for such cases. In particular, the Government gave the following details:

E. The Committee's conclusions

82. First, before analysing the allegations and observations communicated by the Government, the Committee once again wishes to express its grave concern at the allegations which refer to a large number of murders, disappearances, as well as physical aggression, detentions and death threats against trade union officials, members and their families, as well as raids on trade union headquarters and trade union members' homes. In this respect, the Committee notes with alarm that for practically the whole of 1997 the complainants have presented allegations of violent acts against trade union leaders and members. The Committee deplores that in spite of the seriousness of the situation the Government's replies have been limited to a very reduced number of allegations. The Committee requests the Government to take steps to remedy this situation.

83. Likewise, the Committee notes that acts of violence have been committed against trade union members throughout the country and in all sectors of activity and a large number of these acts of violence have been committed against trade union officials and members of the agricultural sector -- members of FENSUAGRO or SINTRAINAGRO -- and the oil sector -- members of ECOPETROL or FEDEPETROL. The Committee deeply regrets that among the new allegations the murder of the Secretary-General of the Single Agricultural Trade Union Federation (FENSUAGRO), Víctor Garzón, in March 1997, appears. Víctor Garzón was interviewed and participated in the direct contacts mission which took place in the country in November 1996. The Committee requests the Government to take measures to stop all acts of violence against unionists and especially in those sectors where the trade unions mentioned operate.

84. The Committee deplores that all factors seem to show that anti-union violence has not decreased and that those who commit these acts of violence against trade union officials or members continue in impunity, as the Government, since the last examination of this case in November 1996, has not provided information on one single case of detention, trial and judgement of those responsible for these acts.

85. Taking into account the nature of the allegations and that it was mentioned in the report of the last direct contacts mission that the Public Defender in his 1996 report to Congress affirmed that "there are still people in the armed forces and police who commit illegal and arbitrary acts in the course of their military and police activities" and "today thousands of Colombians are still terrorized by paramilitary groups" [see 306th Report, p. 85 of the English version], the Committee, observing that the situation has not improved since that time, points out that it is the responsibility of the Government to guarantee the correct comportment of its security forces which, in any event and at all times, must respect human rights. The Committee requests the Government to ensure respect for this principle.

86. Thus, the Committee emphasizes that "the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events" and "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 51 and 55].

87. In connection with the additional information presented on murders and disappearances of trade union officials and members, the Committee notes that the Government states that it has begun legal investigations into the following cases: (1) Néstor Eduardo Galíndez Rodríguez (murdered on 4 March 1997); (2) Erieleth Barón Daza (murdered on 3 May 1997); (3) Jhon Fredy Arboleda Aguirre, William Alonso Suárez Gil and Eladio de Jesús Chaverra Rodríguez (murdered between 11 February and 7 March 1997); (4) Luis Carlos Muñoz (murdered on 7 March 1997); (5) Nazareno de Jesús Rivera García (murdered on 12 March 1997); (6) Héctor Gómez (murdered on 22 March 1997); (7) Gilberto Casas Arboleda, Norberto Casas Arboleda, Alcides de Jesús Palacios Arboleda and Argiro de Jesús Betancur Espinosa (murdered on 11 February 1997); (8) Bernardo Orrego Orrego (murdered on 6 March 1997); (9) José Isidoro Leyton (murdered on 25 March 1997); (10) Magaly Peñaranda (murdered on 27 July 1997); (11) David Quintero Uribe (murdered on 4 August 1997); (12) Eduardo Enrique Ramos Montiel (murdered on 14 July 1997); (13) Libardo Cuéllar Navia (murdered on 23 July 1997); (14) Wenceslao Varela Torrecilla (murdered on 29 July 1997); (15) Abraham Figueroa Bolaños (murdered on 25 July 1997); (16) Edgar Camacho Bolaños (murdered on 15 July 1997); and (17) Ramón Osorio (disappeared on 15 April 1997). The Committee requests the Government to keep it informed of the legal investigations under way.

88. The Committee regrets that the Government has provided no information on the state of the legal investigations on which the Committee asked to remain informed at its meeting of November 1996 in connection with the murders and death threats against the following trade union officials and members: (1) Antonio Moreno (12 August 1995); (2) Manual Ballesta (13 August 1995); (3) Francisco Mosquera Córdoba (February 1996); (4) Carlos Arroyo de Arco (February 1996); (5) Francisco Antonio Usuga (22 March 1996); (6) Pedro Luis Bermúdez Jaramillo (6 June 1995); (7) Armando Umanes Petro (23 May 1996); (8) William Gustavo Jaimes Torres (28 August 1995); (9) Ernesto Fernández Pezter; (10) Jaime Eliacer Ojeda; (11) Alfonso Noguera; (12) Alvaro Hoyos Pabón (12 December 1995); (13) Libardo Antonio Acevedo (7 June 1996); and (14) Jairo Alfonso Gamboa López (threatened with death). In this respect, the Committee once again asks the Government to keep it informed of the result of these investigations.

89. Furthermore, the Committee notes that the Government has not sent its observations on the numerous pending or presented allegations in 1997 and 1998, in connection with assassinations, disappearances, physical aggression, detention and death threats against trade union officials, members and their families (see annexed the complete list of allegations on which the Government has not communicated its observations). The Committee urges the Government to communicate its observations on all of these allegations annexed to this case without delay. The Committee also requests the Government to communicate without delay its observations on the anti-union acts in the banking sector (see the ICFTU communication of 16 January 1998)

90. Finally, the Committee asks once again that the Government keep it informed of the result of the judicial processes under way on the dismissals of trade union officials and members in the ALFAGRES SA and TEXTILIA Ltd. companies and in the Ministry of Finance.

The Committee's recommendations

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

(a) The Committee once again wishes to express its serious concern at the allegations which refer to a great extent to the murders, disappearances, physical aggression and death threats against trade union officials and members and other acts of violence. Moreover, the Committee deplores having to note that impunity continues for those committing these acts of violence against trade union officials and members and, since this case was last examined in November 1996, the Government has not provided information on a single case of detention, trial and judgement of those responsible for these acts. The Committee therefore requests the Government to take steps to remedy this situation.

(b) Taking into account that there are still people in the armed forces and police who commit illegal and arbitrary acts in the course of their military and policy activities and that today thousands of Colombians are still terrorized by paramilitary groups, the Committee points out that it is the responsibility of the Government to guarantee the correct comportment of its security forces which, in any event and at all times, must respect human rights. The Committee reqests the Government to ensure respect for this principle.

(c) The Committee notes that acts of violence have been committed against trade union members throughout the country and in all sectors of activity and that a large number of these have been committed against trade union officials and members from the agricultural sector -- members of FENSUAGRO or SINTRAINAGRO -- and the oil sector -- members of ECOPETROL or FEDEPETROL -- and in this context it deeply regrets the murder in March 1997 of the Secretary-General of the Single Agricultural Trade Union Federation (FENSUAGRO), Víctor Garzón. Víctor Garzón was interviewed and collaborated with the direct contacts mission which took place in the country in November 1996. The Committee requests the Government to take measures to eradicate all acts of violence against unionists and especially in the sectors where the trade unions mentioned operate.

(d) The Committee asks the Government to keep it informed of the result of the legal investigations that have begun in connection with the following murders, disappearances and death threats against trade union leaders and members: (1) Antonio Moreno (12 August 1995); (2) Manual Ballesta (13 August 1995); (3) Francisco Mosquera Córdoba (February 1996); (4) Carlos Arroyo de Arco (February 1996); (5) Francisco Antonio Usuga (22 March 1996); (6) Pedro Luis Bermúdez Jaramillo (6 June 1995); (7) Armando Umanes Petro (23 May 1996); (8) William Gustavo Jaimes Torres (28 August 1995); (9) Ernesto Fernández Pezter; (10) Jaime Eliacer Ojeda; (11) Alfonso Noguera; (12) Alvaro Hoyos Pabón (12 December 1995); (13) Libardo Antonio Acevedo (7 July 1996); (14) Jairo Alfonso Gamboa López (received death threats); (15) Néstor Eduardo Galíndez Rodríguez (4 March 1997); (16) Erieleth Barón Daza (3 May 1997); (17) Jhon Fredy Arboleda Aguirre, William Alonso Suárez Gil and Eladio de Jesús Rodríguez (11 February 1997 to 7 March 1997); (18) Luis Carlos Muñoz (7 March 1997); (19) Nazareno de Jesús Rivera García (murdered 12 March 1997); (20) Héctor Gómez (22 March 1997); (21) Gilberto Casas Arboleda, Norberto Casas Arboleda, Alcides de Jesús Palacios Arboleda and Argiro de Jesús Betancur Espinosa (11 February 1997); (22) Bernardo Orrego Orrego (6 March 1997); (23) José Isidoro Leyton (25 March 1997); (24) Magaly Peñaranda (27 July 1997), (25) David Quintero Uribe (4 August 1997); (26) Eduardo Enrique Ramos Montiel (14 July 1997); (27) Libardo Cuéllar Navia (23 July 1997); (28) Wenceslao Varela Torrecilla (29 July 1997); (29) Abraham Figueroa Bolaños (25 July 1997); (30) Edgar Camacho Bolaños (25 July 1997); and (31) Ramón Osorio (disappeared on 15 April 1997).

(e) The Committee notes that the Government has not sent its observations on the various pending or presented allegations in 1997 and 1998 in connection with murders, disappearances, death threats and physical aggression against trade union officials, members and their families, as well as raids on union headquarters and union members' homes (see annexed the complete list of allegations on which the Government has not communicated its observations), and urges it to communicate its observations on all the allegations in the annex of this case without delay.

(f) The Committee also requests the Government to communicate without delay its comments on the allegations concerning anti-union acts in the banking sector (see ICFTU communication of 16 January 1998).

(g) Finally, the Committee once again requests the Government to keep it informed of the result of the judicial process under way on the dismissals of trade union officials and members of the ALFAGRES SA and TEXTILIA Ltd. companies and the Ministry of Finance.

Annex

Allegations on which the Government has not
communicated its observations

Murders and disappearances

(1) Hernando Cuadros (President of the Tibú branch of the Workers' Trade Union -- USO);

(2) Manuel Francisco Giraldo, member of the executive committee of the National Trade Union of Workers in the Agricultural Industry (SINTRAINAGRO), on 22 March 1955;

(3) Artur Moreno, member of the workers' committee of the Doña Francia plantation, municipality of Apartadó, on 7 June 1995;

(4) 23 workers who were members of the National Trade Union of Workers in the Agricultural Industry (SINTRAINAGRO), on 29 August 1995;

(5) 24 workers from the Rancho Amelia banana farm, who were members of the National Trade Union of Workers in the Agricultural Industry (SINTRAINAGRO), on 20 September 1995;

(6) José Silvio Gómez (coordinator of SINTRAINAGRO activities in Banafinca), on 22 March 1996;

(7) Alvaro David (member of the workers' committee of the Los Planes estate, member of SINTRAINAGRO), on 22 March 1996;

(8) Rodrigo Rodríguez Sierra, President of the Trade Union of Oil Producing Workers (SINTRAPROACEITES), Copey branch, on 16 February 1995;

(9) Jairo Navarro, trade union member, on 6 June 1995;

(10) Isidro Segundo Gil, Secretary-General of the SINALTRAINAL subdirective, on 9 December 1996;

(11) Félix Avilez Arroyo, member of the Colombia Federation of Teachers, on 12 January 1997;

(12) Víctor Julio Garzón, Secretary-General of the Single Agricultural Trade Union Federation (FENSUAGRO), on 7 March 1997;

(13) Aurelio Arbelaez, member of the Workers' Union of the Frontino Gold Mines, on 4 March 1997;

(14) Néstor Eduardo Galindo, member of the subdirective of the Colombia-Yumbo National Hospital Workers' Union, on 6 March 1997;

(15) Bernardo Orrego Orrego, on 6 March 1997;

(16) Gilberto Casas, Alcides Palacios Casas, Norberto Casas, Argiro Betancur, Jhon Fredy Arboleda, Eladio Chaverray and William Suárez, members of the Farmworkers' Union, Department of Antioquia, between 11 February and 7 March 1997;

(17) Luis Carlos Muñoz, union member, on 7 March 1997;

(18) Nazareno de Jesús Rivera, member of the Workers' Union of the Frontino Gold Mines, on 12 March 1997;

(19) Enoc Mendoza Riaño, union member, on 7 April 1997;

(20) Frieleht Varon, Branch President of the National Union for Health and Social Security (SINDESS), on 3 May 1997;

(21) Arnold Sánchez Maza, on 13 July 1997;

(22) Freddy Francisco Fuentes Paternina, leader of the Córdoba Teachers' Association (ADEMACOR), on 18 July 1997;

(23) Atilio Vázquez, union member, disappeared on 27 July 1997;

(24) Sabas Domingo Zocadagui Paredes, union leader, on 3 July 1997 in Arauca;

(25) Juan Camacho, union member in the mining sector, on 25 April 1997;

(26) Luis Orlando Camaño Galvis, union leader, on 20 July 1997;

(27) José Ricardo Sáenz, member of the Colombia Teachers' Federation, disappeared on 24 July 1996;

(28) Pedro Fernando Acosta Uparela, member of the Colombia Teachers' Federation, along with his adopted son, Hugo Causla, disppeared on 28 December 1996;

(29) Alvaro Taborda, member of the Colombia Teachers' Federation, disappeared on 8 January 1997;

(30) Ramón Osorio, National Secretary of Education for FENSUAGRO, disappeared on 15 April 1997 in Medellín;

(31) Misael Pinzón Granados, union member, disappeared on 12 July 1997;

(32) Orlando Quiceno López, union member, on 16 July 1997;

(33) Eduardo Ramos, union leader at the "El Chispero" farm in Apartadó, Urabá, Antioquia, on 14 July 1997;

(34) Arley Escobar, President of the Union for the National Institute of Penitentiaries and Prisons (INPEC), Cali branch, on 18 July 1997;

(35) Mauricio Tapias Llerena and Camilo Suárez Ariza, Secretary-General and lawyer, respectively, for FENSUAGRO, on 21 July 1997;

(36) Abel Villa, member of the Mine Workers' Union, on 21 July 1997;

(37) Guillermo Asprilla, member of SINTRAINAGRO, on 23 July 1997;

(38) Edulfo Zambrano, President of SINTRAELECOL, on 27 October 1997;

(39) Emiliano Jiménez and Amadeo Jalave Díaz, members of the Oil Industry Workers' Trade Union (USO); and Jhoni Cubillo and Ulpiano Carvajal, union leaders of ECOPETROL; Rami Vaca, contractor for ECOPETROL; disappeared on 27 October 1997;

(40) Jose Giraldo, Secretary of SINDICONS, murdered in Medellín on 26 November 1997.

Attempted murders

(1) Trade union members Edgar Riaño, Darío Lotero, Luis Hernández and Monerge Sánchez;
(2) Gilberto Correño, leader of the Workers' Trade Union, 7 December 1996.

Death threats

(1) Bertina Calderón (Vice-President of the CUT);

(2) Daniel Rico (President of the Federation of Petroleum Workers -- FEDEPETROL);

(3) Víctor Ramírez (President of the Transport Workers' Union -- SINTRASON);

(4) members of the Executive Committee of the Single Agricultural Trade Union Federation (FENSUAGRO);

(5) Francisco Ramírez Cuéllar (President of the Trade Union of Workers of the Mineralco, SA, enterprise);

(6) Pedro Barón, President of the Tolima branch of the Single Confederation of Workers of Colombia (CUT), by members of the armed forces following his participation in a protest strike on 19 July 1995;

(7) members of the Executive Committee of the Workers' Union of Titán SA, municipality of Yumbo, threatened with death by a paramilitary group called "Colombia without guerrillas" (COLSINGUE), on 26 October 1995 and 17 May 1996;

(8) Jorge Eliecer Marín Trujillo, President of the Workers' Union of the Municipality of Chinchiná, on 9 December 1996 and 8 and 11 March 1997;

(9) members of the Executive Committee of the Trade Union of Workers of the Department of Antioquia, Martha Cecilia Cadavid, lawyer for the trade union, on 13 and 28 June 1997; José Luis Jaramillo Galeano, Secretary-General; Rangel Ramos Zapata, President; Héctor de Jesús Giraldo, Jairo Humberto Gutiérrez, Luis Norberto Restrepo, Jorge Humberto Franco, Carlos Hugo Jaramillo, Horacio Berrio Castaño, Alvaro Alberto Arango and Oscar Aguirre, committee members;

(10) members of the Executive Committee of the South Bolívar Agromining Association, Justo Pastor Quiroz, Secretary; Roque León Salgado, Treasurer, and Bersaly Hurtado, Prosecutor, have been threatened.

Detention and raids on homes

(1) Luis David Rodríguez Pérez (former leader of the National Trade Union of Workers of Incora -- SINTRADIN);

(2) Edgar Riaño, leader of the Workers' Trade Union (USO) -- Huila, 7 December 1996; on orders of the Office of the Prosecutor General, and two hours later his friend Gilberto Correño was attacked and gravely injured;

(3) trade union members of ECOPETROL, Marcelino Buitrago, Felipe Mendoza, Monerge Sánchez, Guillermo Cárdenas, Rafael Estupiñán, Jorge Estupiñán, Hernán Vallejo, Luis Rodrigo Carreño, Leonardo Mosquera, Fabio Liévano, Elder Fernández, Gustavo Minorta and César Carrillo, in December 1996.

Raids on union headquarters, telephone tapping, surveillance of trade union members

A raid on the headquarters of the Single Agricultural Trade Union Federation (FENSUAGRO), the tapping of telephones in the union headquarters and of members' telephones and surveillance of the president of the Federation, Luis Carlos Acero, by armed persons.

Physical aggression and police repression

(1) Police repression against workers from the Empresas Públicas de Cartagena during a peaceful demonstration on 29 June 1995;

(2) police repression against workers from the Empresas de Acueductos y Teléfonos and organized peasants from Tolima who were holding a protest meeting on 14 August 1995. The repression resulted in the death of Fernando Lombana, who was a member of the Association of Farmers of Small and Medium-Sized Holdings in Tolima (ASOPEMA), the serious injury of three other persons and several arrests (trade union members belonging to the organizations that took part in the protest);

(3) police assault, causing injury, to the following trade union members: Héctor Moreno, Edgar Méndez, César Castaño, Luis Cruz and Janeth Leguisamón, who took part in an information day on 6 January 1997 organized by the National Traffic Officers' Association (ANDAT).

 

Case No. 1916

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

Complaint against the Government of Colombia
presented by
the Trade Union of Workers of Medellín
Municipal Enterprises (EEVVMM)

Allegations: Anti-union dismissals following the declaration
of a strike to be illegal

92. The complaint in this case appears in a communication from the Trade Union of Workers of Medellín Municipal Enterprises (EEVVMM) dated 18 November 1996. The Government sent observations in a communication dated 23 June 1997.

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

A. The complainant's allegations

94. In its communication of 18 November 1996, the Trade Union of Workers of the Medellín Municipal Enterprises (EEVVMM) alleges the dismissal of 209 workers (including all the members of the union's executive, the members of the Complaints Committee, the members of the Negotiating Committee and members of the three previous union executives, as well as many rank and file members) following the declaration of illegality of the strike that took place in February 1993 during a dispute arising from negotiations on a collective agreement at the refuse collection undertaking known as Medellín Municipal Enterprises (Empresas Varias Municipales de Medellín). The strike was declared illegal on 18 February 1993 by the Ministry of Labour and Social Security, which cited sections 430, paragraph 1(e) and (f) and section 450(a) of the Labour Code which prohibit strikes in the public service. (The complainant provides a copy of the ministerial decision quoting the relevant passages from these sections. Section 430, paragraph 1(e) and (f) stipulates that: "In accordance with the Constitution, strikes shall be prohibited in the public service. For this purpose, the term "public service" shall be deemed to cover any organized activity aimed at safeguarding essential public services in a regular and uninterrupted manner within a special statutory framework, whether undertaken by the State, directly or indirectly, or by private individuals; the term public service thus covers among other things the following activities: ... (e) (activities) ... market squares ... (f) (activities) pertaining to all public sanitary and cleaning services").

95. The complainant states that the trade union and the workers concerned lodged administrative and judicial appeals which were exhausted in March 1996 and that all the administrative decisions and judicial rulings given in the case have accepted that the dismissals were in accordance with national legislation.

B. The Government's reply

96. In its communication of 23 June 1997, the Government refers to infringements of certain provisions of the collective agreement by the undertaking known as Medellín Municipal Enterprises and to an administrative inquiry into the matter requested by the complainant in January 1993. The Government in its reply describes the action taken in response to the complaints in separate administrative and judicial bodies.

97. Given that these government observations bear no relation to the allegations -- and some indeed relate to facts which pre-date the allegations in the present case -- the Office in a communication dated 10 July 1997 asked the Government to provide more detailed information which, however, has not so far been received.

C. The Committee's conclusions

98. The Committee notes that in the present case, the complainant alleges the dismissal of 209 workers of the undertaking known as Medellín Municipal Enterprises (which specializes in refuse collection), including all the members of the union's executive, the members of the Complaints Committee, the members of the Negotiating Committee and members of the three previous union executives, as well as many rank and file members, following the declaration of illegality of a strike that took place in February 1993 during a dispute arising from negotiations on a collective agreement. The Committee notes that the strike was declared illegal on 18 February 1993 by the Ministry of Labour and Social Security on the basis of provisions contained in section 430, paragraph 1(e) and (f) and section 450(a) of the Labour Code, which prohibit strikes in public services which the Government considers to be essential (although the Committee considers that they are not essential in the strict sense of the term).

99. First of all, the Committee regrets that the Government in its reply makes no specific reference to the dismissals that followed the declaration of illegality of the strike and instead refers to other issues (infringements by the employer of certain provisions of the collective agreement, some of which pre-date the facts alleged in the present case) which are not addressed by the present allegations. The Committee notes that on 10 July 1997 the Office asked the Government for information on the questions raised by the complainant which, however, has so far not been received.

100. As regards the declaration of illegality of the strike on the grounds of the essential nature of the refuse collection service provided by the undertaking, the Committee wishes to emphasize that the refuse collection service is not an essential service in the strict sense of the term (that is to say, a service the interruption of which is likely to endanger the life, safety or health of the whole or part of the population) which could constitute grounds for an absolute prohibition on strike action, but that, given the nature of the service in question, the Committee of Experts on the Application of Conventions and Recommendations has stated that a service might become essential if the strike affecting it exceeds a certain duration or extent so as to endanger the health or life of the population [see General Survey on "Freedom of association and collective bargaining", 1994, para. 160]. In this connection, the Committee considers that in appropriate cases in which the imposition of minimum services is permissible, such as in the sector of refuse collection, measures should be taken to guarantee that such minimum services avoid danger to public health and safety. In the present case, bearing in mind these considerations, the Committee deplores the declaration of illegality of the strike in the refuse collection sector.

101. Furthermore, the Committee recalls that for a number of years, when considering how far Colombian legislation conforms with the provisions of Convention No. 87, the Committee of Experts has criticized the provisions contained in the Labour Code on the basis of which the Government declared the strike to be illegal and which prohibit strike action in a very wide range of public services which are not necessarily essential in the strict sense of the term [see the relevant observation of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A, 1998].

102. At the same time, noting that the strike was declared illegal by an administrative authority, the Committee wishes to draw the Government's attention to the fact that "Responsibility for declaring the strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522], particularly in the public sector.

103. Under these circumstances, the Committee deplores the mass dismissals that have taken place and urges the Government to take all necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for participating in a strike in 1993 at the undertaking known as Medellín Municipal Enterprises, and if this is not possible, to ensure that they receive full compensation. The Committee also requests the Government to take measures to ensure that in future, declarations on the legal status of strikes are made by an independent body and not by the administrative authority. The Committee requests the Government to keep it informed of measures taken in this regard.

104. Lastly, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to take steps to amend those provisions of the Labour Code that prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (in particular sections 430 and 450).

The Committee's recommendations

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

(a) The Committee urges the Government to take all necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for participating in a strike at the undertaking known as Medellín Municipal Enterprises and, if this is not possible, to ensure that they receive full compensation. Similarly, the Committee requests the Government to take measures to ensure that in future, declarations on the legal status of strikes are made by an independent body and not by the administrative authority. The Committee requests the Government to keep it informed of measures taken in this regard.

(b) The Committee, like the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to take steps to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (in particular, sections 430 and 450).

 

Case No. 1925

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

Complaint against the Government of Colombia
presented by
the National Union of Employees of Avianca (SINTRAVA)

Allegations: Acts of anti-union discrimination

106. The complaint in the present case is contained in a communication dated 31 March 1997 from the National Union of Employees of Avianca (SINTRAVA). The Government sent its observations in communications dated 23 June, 23 September and 23 December 1997.

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

A. The complainant's allegations

108. In its communication dated 31 March 1997, the National Union of Employees of Avianca (SINTRAVA) alleges the existence of a campaign by the senior management of the company Avianca-Sam-Helicol against the trade union in question. Specifically, the complainant organization alleges the following: (1) the suspension of a trade union licence granted to the union's subsidiary office in Cundinamarca in accordance with a collective agreement; (2) the dismissal of trade union officers (the officers in question being Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado) from the union's Cundinamarca subsidiary office; (3) the withdrawal of recognition of SINTRAVA representatives from the members of the union's National Council on 7 November 1995; (4) the dismissal of union officers from the union's Barranquilla section (Luis Cruz and Gabriel San Juan); (5) the dismissal of 16 union members from the operations area at Eldorado Airport in Bogotá for refusing to accept a settlement with the company; (6) a campaign by the company Avianca-Sam-Helicol, following the conclusion of a collective agreement, obliging employees covered by the collective agreement to accept conditions of employment set out in a so-called "non-unionization" statute; (7) failure to deduct SINTRAVA union dues from the wages of 280 union members after 15 December 1996, and in some cases, the illegal withholding by the company of dues which had been deducted; and (8) the selective application of article 140 of the Substantive Labour Code concerning payment of wages without work.

B. The Government's reply

109. In its communication of 23 June 1997, the Government states that on 10 February 1997, an administrative inquiry into various questions included in the present case began and on 12 February, instructions were given for the submission of evidence. The Government adds that as part of the inquiry, instructions were also given to list the inquiries into these facts in the different workplaces. Finally, the administrative authorities invited the parties to the dispute to attend a conciliation meeting on 6 June 1997.

110. In its communication of 23 September 1997, the Government states that the conciliation meeting took place on 17 July 1997 and that, since the parties were unable to reach an agreement, the company requested that evidence be submitted and the trade union reaffirmed the terms of its complaint. The Government states in this connection that the evidence has been received and that, once it has been examined, a decision will be made.

111. Lastly, in its communication of 23 December 1997, the Government states that the administrative authorities are beginning investigations into allegations of non-compliance with the terms of the relevant collective agreement and in connection with the selective application of article 140 of the Substantive Labour Code to some of the company's workers. In addition, the Government states that the company has been fined a sum equivalent to 80 times the legal minimum wage following an investigation into the implementation by the company of a "non-unionization" statute.

C. The Committee's conclusions

112. The Committee observes that in the present case, the allegations refer to several distinct acts of anti-union discrimination that are alleged to have occurred in the company Avianca-Sam-Helicol. Specifically, the complainant organization alleges the following: the suspension of a trade union licence granted in accordance with a collective agreement; the dismissal of trade union officers and members; the derecognition of SINTRAVA representatives from the members of the National Council of a campaign to force workers covered by the collective agreement to accept conditions of employment set out in a so-called "non-unionization" statute; failure to deduct trade union dues from wages and the illegal withholding of dues that had been deducted; and the selective application to union leaders and members of article 140 of the Substantive Labour Code (concerning remuneration without work).

113. The Committee takes note of the fact that the Government in its reply maintains that: (i) administrative investigations have begun into the case in question; (ii) the administrative authorities invited the parties to attend a conciliation meeting but the parties did not reach an agreement; (iii) since no agreement was reached, evidence will be submitted to allow a decision to be taken; (iv) the company has been fined a sum equivalent to 80 times the legal minimum wage following an investigation into the implementation of a so-called "non-unionization" statute; and (v) investigations have started into allegations of non-compliance by the company with the relevant collective agreement and into the selective application to some workers of article 140 of the Substantive Labour Code (concerning remuneration without work).

114. The Committee requests the Government to transmit the decision concerning the fine imposed on the company Avianca-Sam-Helicol and to confirm that this type of anti-union discrimination practice has ceased in this company. The Committee also requests the Government to keep it informed of the investigations concerning the violation of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.

115. The Committee regrets that the Government in its reply did not refer specifically to the other allegations presented concerning anti-union dismissals, the failure to deduct union dues, the non-recognition of trade union leaders and the suspension of time off for trade union activities, which it examines below.

116. As regards the dismissal of union officers at the trade union's Cundinamarca subsidiary office (the officers in question being Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members of the operations area at Eldorado Airport in Bogotá, the Committee draws the Government's attention to the principle that "No person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment". [See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 696.] Under these circumstances, the Committee requests the Government to take all necessary steps forthwith to begin an investigation into this matter, and, if it is found that trade union officers and members were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of the inquiry.

117. With regard to the company's failure after 15 December 1996 to deduct union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that "non-payment of union dues can result in serious financial difficulties for trade union organizations" [see 307th Report of the Committee, Case No. 1889 (Argentina), para. 85], and asks the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the Labour Code. The Committee requests the Government to keep it informed in this connection.

118. Lastly, as regards the allegations concerning the suspension of a permanent licence granted to the union's subsidiary office at Cundinamarca and the withdrawal on 7 November 1995 of recognition as representatives of the National Union of Employees of Avianca (SINTRAVA) from the members of the union's National Council, the Committee requests the Government to take steps to carry out an investigation into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.

The Committee's recommendations

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

(a) The Committee requests the Government to transmit the decision concerning the fine imposed upon the company Avianca-Sam-Helicol for having applied a status of "not unionized" to the workers and to confirm that this type of anti-union discrimination practice has ceased. It further requests the Government to keep it informed of the investigations into violations of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.

(b) As regards the dismissal of trade union officers from the union's subsidiary office at Cundinamarca (Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members from the operations area at Eldorado Airport in Bogotá, the Committee requests the Government to take all steps forthwith to begin an investigation into the matter and, if it is found that the union officers and members in question were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of this investigation.

(c) As regards the failure after 15 December 1996 to deduct trade union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that non- payment of union dues can result in serious financial difficulties for trade union organizations and requests the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the substantive Labour Code. The Committee requests the Government to keep it informed in this connection.

(d ) As regards the allegations concerning the suspension of a permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with a collective agreement, and the withdrawal on 7 November 1995 of recognition as SINTRAVA representatives from members of the union's National Council, the Committee requests the Government to take steps to ensure that an investigation is conducted into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.

 

Case No. 1865

Interim Report

Complaint against the Government of the Republic of Korea
presented by
-- the Korean Confederation of Trade Unions (KCTU)
-- the Korean Automobile Workers' Federation (KAWF) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Arrest and detention of a trade union leader;
government refusal to register newly established organizations:
adoption of labour law amendments contrary to freedom of association

120. The Committee already examined the substance of this case at its May 1996, March and June 1997 meetings, when it presented an interim report to the Governing Body [304th Report, paras. 221-254, 306th Report, paras. 295-346, 307th Report, paras. 177-236 approved by the Governing Body at its 266th, 268th and 269th Sessions (June 1996, March and June 1997)].

121. Since the most recent examination of this case, the Government forwarded its observations in communications dated 15 October 1997 and 17 March 1998.

122. In December 1997, the Government agreed to receive a high-level ILO tripartite mission to the country to examine the issues raised in Case No. 1865. This mission visited the Republic of Korea from 9 to 13 February 1998. The report of the mission is annexed to this case.

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

A. Previous examination of the case

124. During the course of its previous examination of this case, the Committee had noted that the Trade Union and Labour Relations Adjustment Act (TULRAA), which was enacted on 13 March 1997, contained a number of amendments which constituted progress towards acceptance of its previous recommendations. However, the Committee had also noted that this new law had not amended certain other provisions which the Committee had previously considered to be contrary to freedom of association principles including those relating to the denial of the right of public servants and teachers to establish and join organizations of their own choosing, the illegality of trade union pluralism at the enterprise level, the prohibition on the right to strike in non-essential services and the denial of the right to organize of dismissed workers. Within the context of the possibility, under the new law, of trade union pluralism at the national and industrial levels, the Committee had requested the Government to register the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU), and the Federation of Hyundai Group Trade Union.

125. The case had also addressed allegations of a factual nature involving detention of trade union leaders and members as a result of their trade union activities, police intervention in trade union marches and the harassment that members of an international delegation sent to the Republic of Korea were subjected to.

126. At its June 1997 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

(a) As regards the legislative aspects of this case, while observing with interest that the new law, the Trade Union and Labour Relations Adjustment Act (TULRAA), contains a number of amendments which constitute progress towards acceptance of the Committee's previous recommendations, the Committee urges the Government:

(b) As regards allegations of a factual nature:

(c) The Committee encourages the Government to receive the proposed mission before the next reform of legislation takes place and to continue holding consultations with the Office to fix the details of a mission to the country.

B. The Government's reply

Right to organize of public servants and teachers
(307th Report, paragraph 236(a)(i) and (ii))

127. In its communication dated 15 October 1997, the Government refers first of all to the legislative aspects of this case. Regarding the right to organize of public servants and teachers, the Government reiterates its previously held view that The Republic of Korea's unique situation should be fully considered. The ruling party and two opposition parties agreed to continue to study and review this issue when they were engaged in the process of drawing up the new labour laws at the National Assembly in March 1997. Therefore, the Government indicates that it is carrying out an extensive study on this matter and gathering a wide range of opinions from all the relevant parties.

Possibility of multiple trade unions under the new law,
the Trade Union and Labour Relations Adjustment
Act (TULRAA) (307th Report, paragraph 236(a)(iv))

128. With regard to the Committee's previous recommendation to register the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union, the Government states that as of 30 September 1997, 12 federations, including the KAWF, the NCSWU and the Federation of Hyundai Group Trade Unions, have been issued certificates for registration of trade unions. The 12 federations are grouped as follows:

Trade union pluralism at the enterprise level
(307th Report, paragraph 236(a)(v))

129. As regards the issue of rendering trade union pluralism legal without delay at the enterprise level, the Government replies that under the new laws the establishment of multiple unions at the enterprise level is to be allowed after a five-year preparatory period (hence, in the year 2002). The single union system at the enterprise level has been practised for several decades in the Republic of Korea. The five-year preparatory period is in place to address concerns that multiple trade unions within a certain company -- a major change to the current negotiation practice -- could lead to instability in industrial relations, significant confusion over collective bargaining and an increase in internal disputes among unions. The Government points out nevertheless that the new laws reflect its intention to allow multiple trade unions at the enterprise level after concrete measures have been taken to minimize the side-effects of multiple trade unions. According to the Government, appropriate methods and procedures for collective bargaining under the multiple trade unions system will be established after consulting workers' and employers' organizations and conducting adequate study and review on this issue.

Ban on third-party intervention
(307th Report, paragraph 236(a)(vi))

130. The Government points out that workers and employers are allowed to receive assistance from anyone who is notified in advance to the Minister of Labour. The purpose of this notification is merely to help the Government identify those persons or organizations who assist the unions or employers. In some cases, the number of advisers reported was so large that it was hard to recognize them as acceptable in terms of common sense. For example, Dongheung Electricity Co., based in Inchon, once reported that advisers numbered 84,560 persons, while its trade union membership numbered only 330.

Reported number of advisers in labour relations (as of August 1997)
 

Total

Unions' side

Employers' side

Reported number of unions and companies

Reported number of advisers

Number of unions

Number of advisers

Number of companies

Number of advisers

174

675 230

171

675 215

3

15

 

Prohibition of industrial action during the arbitration period
(307th Report, paragraph 236(a)(vii))

131. The Government indicates that the Labour Relations Commission shall conduct arbitration in the following circumstances: upon requests for arbitration by both of the parties concerned; upon requests for arbitration by one of the parties in accordance with the provisions of a collective agreement; or in cases in which a chairman of the Labour Relations Commission decides to refer a dispute in essential public services to arbitration upon the recommendation of the Special Mediation Committee which consists of three members of the Commission representing public interests.

132. The Government adds that industrial action shall not be conducted for 15 days from the date when industrial disputes have been referred to arbitration, and the arbitration award rendered by the Labour Relations Commission shall have the same effect as that of a collective agreement. Labour strikes are seen as a last resort; therefore, this measure is intended to temporarily postpone labour strikes, allowing for the reasonable and peaceful settlement of labour disputes. However, even while industrial actions are prohibited during arbitration, labour and management may settle the industrial dispute on a voluntary basis, and in case an arbitration award is not rendered during the period, labour may resume industrial actions. This means that arbitration does not undermine the right to act collectively. In addition, if the party concerned considers that an arbitration award rendered by a Regional Labour Relations Commission violates the law, or is an act beyond its authority, it may apply for a review of the case of the Central Labour Relations Commission or file an administrative suit.

Wage payment during strikes (307th Report,
paragraph 236(a)(ix))

133. The Government explains that there have been quite a large number of prolonged industrial disputes because workers demanded wages during strikes or proposed the payment of wages as a prerequisite to bargaining and the settlement of disputes. As it seemed unlikely that these practices could have been eliminated through the endeavours of labour and management acting on their own, the new laws just clarify the legal principle that employers have no obligation to pay wages during the period of a strike and trade unions cannot initiate or prolong a strike for payment of wages during strikes. The Government adds that according to the principle of "No Work, No Pay", wages are not paid for the period of time during which a worker is not working. This principle is essentially derived from employment contracts and has been internationally recognized as a legal norm.

Trade union membership of dismissed workers
(307th Report, paragraph 236(a)(x))

134. The Government points out that in the Republic of Korea, almost all trade unions are established at the enterprise level; therefore, only workers employed by companies are considered to be qualified to join their trade unions, and the law is interpreted, in principle, to mean that a dismissed worker loses his or her union membership of the company to which he/she belonged. Moreover, the provision stipulating that trade union officials shall be elected from among the trade union members has been consistently observed since the Trade Union Act was enacted in 1953, and the practice of electing union officials from among the union members has been established in both enterprise-level trade unions and their upper-level organizations.

135. However, as a means to prevent employers from hampering union activities through discriminatory acts against unions by resorting to unfair dismissals of union members, even dismissed workers have been allowed to retain their membership and continue their union activities, given that they meet certain conditions. The new law provides that a dismissed worker, who claims that his/her dismissal is the result of an unfair labour practice and, who applies for remedy to the Labour Relations Commission (an administrative authority with judicial characteristics), may retain his/her membership until a decision is made by the Central Labour Relations Commission (CLRC). In case the CLRC determines that the dismissal constitutes an unfair labour practice, the worker concerned may retain his/her membership and carry out his/her duty as a trade union official.

Registration of the Korean Confederation of Trade Union
(KCTU) (307th Report, paragraph 236(a)(xii))

136. The Government states that the TULRAA eliminated the provision banning the establishment of multiple trade unions, thus laying the legal foundation for the statutory establishment of the KCTU. The KCTU submitted its report on the establishment of trade unions to the Ministry of Labour (MOL) on 6 May 1997. But the MOL found that the KCTU report contained some legal flaws. For example, the participation of disqualified union official members in the KCTU violated section 23(1) of the TULRAA, and the affiliation to the KCTU of unlawful organizations such as the Korean Teachers' and Educational Workers' Union (Chunkyojo) violated section 10(2) of the Act. The MOL requested the KCTU to remove these illegitimate conditions by 28 May, allowing the maximum statutory make-up period of 20 days. However, since the KCTU refused to do so, the MOL had to return the KCTU's report on establishment on 30 May 1997. In response, the KCTU requested administrative appeals on 4 June 1997, in order to reverse the MOL decision. The case was referred to the Administrative Appeals Commission under the Prime Minister on 14 June, but it was rejected on 4 September. The KCTU filed an administrative suit to the Appellate Court on 28 September 1997.

137. However, although the certificate for registration was not issued to the KCTU, in fact it is playing its role as a representative organization for its member workers participating in the Presidential Commission on Industrial Relations Reform and the Labour Relations Commissions: out of members representing workers in the Labour Relations Commission, 71 members from the trade unions under the KCTU were appointed. The Government (Ministry of Labour) is willing to issue a certificate for registration to the KCTU immediately, as long as it removes the illegal conditions included in its initial report.

Information on developments concerning the situation
of Mr. Kim, Im-shik (307th Report, paragraph 236(b)(iii))

138. The Government indicates that Mr. Kim, Im-shik (President of the Hyundai Heavy Industry Trade Union) led an illegal strike from 26 to 30 December 1996, hampering the operation of the Hyundai Heavy Industry Co. and causing damage worth 1.1 billion won. Mr. Kim was arrested on 18 January 1997 on charges of interference with business under the Penal Code and released on 22 January after review of the legality of the detention.

Developments concerning the situation of detained
workers (307th Report, paragraph 236(b)(v))

139. The Government states that Mr. Song, Ho-jun, who was reported to be on trial (as indicated in Annex 4 to this case in the 307th Report), was released with a suspended sentence on 20 February 1997. Mr. Cho, Myung-rae and Mr. Oh, Jong-ryul, who were reported to be serving their prison terms (as indicated in Annex 3 to this case in the 307th Report), were released on 20 June and 4 September 1997 respectively with their terms served. The Government contends that whether the persons currently on trial will be released or not is a matter to be determined by the judiciary, and that it has no authority to interfere with the matter. Lastly, in a communication dated 17 March 1998, the Government indicates that Mr. Hwang, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation, Seoul Chapter, who were listed in Annex III to this case in the 307th Report, were released from jail on 13 March 1998 by an amnesty ordered by President Kim Dae-Jung.

C. The Committee's conclusions

140. The Committee notes the report of the high-level tripartite mission which visited the Republic of Korea from 9 to 13 February 1998 and wishes to thank the members of the mission for the work accomplished. The Committee would also like to thank the President-Elect and members of his transition team, the authorities, the social partners and all the other parties with whom the members of the mission met for their high level of cooperation during the course of the mission's visit to the country. The Committee further notes the written information provided by the Government in a communication dated 15 October 1997.

141. During its previous examination of the case, the Committee had taken note of the adoption by the National Assembly of the Trade Union and Labour Relations Adjustment Act (TULRAA) and of its enactment on 13 March 1997. While the Committee had noted that this new law contained a number of amendments which constituted progress toward acceptance of its previous recommendations, it had considered that certain provisions that it had deemed to be contrary to freedom of association principles had not been amended.

142. In this respect, the Committee notes from the mission report that a Tripartite Commission composed of representatives of the Government, business and the two central trade union organizations (the registered Federation of Korean Trade Unions (FKTU) and the still unregistered Korean Confederation of Trade Unions (KCTU)), as well as of Members of Parliament belonging to other political parties, was established on 15 January 1998 by the President-Elect and his transition team. The Committee notes with interest that the Tripartite Commission has agreed to a series of reforms dealing with economic and labour-related issues, including those pertaining to freedom of association. It is the Committee's understanding from the mission report that the proposed reforms relating to freedom of association issues, if adopted by the National Assembly, would bring the industrial relations system prevailing in the Republic of Korea more fully into line with freedom of association principles and the Committee's previous recommendations. Moreover, these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee proposes to review the various issues it had raised during its previous examination of this case in the light of the recent events which have taken place in the country and which are reflected in the mission report.

Allegations of a legislative nature

143. The Committee notes with interest from the mission report that the Tripartite Agreement provides for the legalization of teachers' unions from 1 July 1999. This would be accomplished notably by amending the relevant provisions of the various Acts which currently deny private and public school teachers the right to form and join organizations of their own choosing. The Committee notes with concern, however, that some difficulties might be encountered during the process of legalizing teachers' unions due to a degree of opposition from some members of the majority Grand National Party (GNP) in the National Assembly who feel that teachers should not have the right to organize because of their special role and status in Korean society and because of the radical image of the illegal Korean Teachers' and Educational Workers' Union (CHUNKYOJO). The Committee notes nevertheless from the mission report that these parliamentarians are willing to continue negotiations on this issue and would encourage all parties concerned to do so. In this respect, the Committee must recall that teachers, like all other workers, without distinction whatsoever, should have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee therefore requests the Government to take the appropriate steps so as to ensure that the right to organize of teachers, as enunciated in the Tripartite Agreement, is recognized as soon as possible and at the very latest within the time frame mentioned in that agreement. Moreover, while teachers have been able to establish educational associations since 1991 and can discuss working conditions with the authorities, it would not appear that these associations are trade unions in the true sense of the term, i.e. which are responsible for defending and promoting the interests of their members. This is reflected by the fact that CHUNKYOJO has not been registered up to now. The Committee would therefore request the Government to register CHUNKYOJO so that it can legally defend and promote the interests of its members as soon as the right to organize of teachers is legalized.

144. With regard to the issue of the right to organize of public servants, the Committee notes with interest from the mission report that the proposal by the Tripartite Commission to grant public servants the right to form associations (workplace councils) was adopted by the National Assembly in February 1998. This means that from 1 January 1999 public servants will have the right to establish such workplace councils through which they will be able to hold discussions with the authorities on matters relating to, inter alia, the improvement of the working environment and the settlement of grievances. The Committee notes with concern, however, that large categories of public servants are excluded from joining these workplace councils. Hence, public servants from grades 1 to 5 will be excluded from workplace councils as will public servants belonging to special services, i.e. firefighters and the police. Finally, public servants involved in personnel and confidential work, budgeting and accounting, receiving and distributing goods, supervising general service staff, secretarial work, guarding security facilities and driving passenger cars or ambulances will also not be entitled to join workplace councils. In view of the restrictions on the right to associate of a wide range of public servants, the Committee would draw the Government's attention to the fundamental principle that all public service employees, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to further and defend the interests of their members [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206]. The Committee would therefore request the Government to consider extending the right of association, recognized as of 1 January 1999 for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles.

145. According to the mission report, the same categories of public servants who will have the right to form and join associations from 1 January 1999 will gradually be granted the right to form and join unions. The Government indicates that trade unions will be allowed for public servants when the country's economic situation improves and a national consensus has been reached on the matter. In this respect, the Committee would recall that the denial of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with freedom of association principles according to which workers "without distinction whatsoever" shall have the right to establish and join organizations of their own choosing without previous authorization [see Digest, op. cit., para. 216]. With regard to the Government's concerns in relation to the need to maintain national security and stability, the Committee would recall that the armed forces and the police may be excluded from the right to organize. The Committee would recall further that the right to organize does not necessarily imply the right to strike which may be prohibited in public services that are essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population. This would, for example, be the case of fire-fighting services. Consequently, the Committee requests the Government to take steps to recognize, as soon as possible, the right to establish and join trade union organizations to all public servants who should enjoy this right in accordance with freedom of association principles.

146. With regard to the introduction by the TULRAA of the possibility of trade union pluralism at the national and industrial levels, the Committee notes with interest from the Government's reply dated 15 October 1997 that several federations, including the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Unions have been registered under the TULRAA. The Committee regrets, however, that in taking steps to recognize trade union pluralism, the Government did not immediately consider organizations established at the enterprise level for which trade union pluralism will only be possible from the year 2002. It notes the arguments put forward by the Government to justify this delay, including the instability in industrial relations and confusion over collective bargaining which could result therefrom. The Committee is nevertheless of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by setting up a stable collective bargaining system in conformity with trade union pluralism. The Committee therefore requests the Government to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system. The Committee suggests that this is a matter that should be discussed in the Tripartite Commission.

147. With regard to the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee notes the information furnished by the Government to the effect that the purpose of the notification of the identity of third-parties to the Ministry of Labour under section 40(1)(3) of the TULRAA is merely to help the Government identify those persons who assist the unions or employers. The Committee further takes note of the detailed information provided by the Government on the total number of third-parties (675,230) assisting unions (171) and companies in 1997. While the number of such advisers notified is very large, the Committee notes from the mission report that the KCTU, in particular, had notified the names of many advisers to the Ministry of Labour because non-notified persons were prohibited from intervening in collective bargaining or even making any comments about an industrial dispute under the terms of section 40(2) of the TULRAA. The Committee considers the notification requirement contained in section 40(1)(3) of the TULRAA to be onerous on unions and unjustified, especially in the light of the prohibition contained in section 40(2) of the TULRAA. Moreover, it would appear to the Committee that this notification requirement is not a pure formality since non-notified persons who intervene in collective bargaining are liable to a maximum penalty of three years' imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). The Committee considers that such provisions entail serious risks of abuse and are a grave threat to freedom of association. Consequently, the Committee would request the Government to repeal the notification requirement contained in section 40 of the TULRAA as well as the penalties provided for in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes.

148. The Committee notes that the TULRAA establishes a distinction between general public services and essential public services and that recourse may be had to compulsory arbitration for this second category of public services only after a recommendation of the Special Mediation Committee to this effect (sections 71(2), 74(1) and 62(3) of the TULRAA). The Committee observes that the essential services are the following: railroad services, inner-city bus services, water, electricity, gas supply, oil refinery and supply services, hospital services, banking services and telecommunication services. However, the inner-city bus services and banking services (except for the Bank of Korea) will be considered as essential only until the year 2000.

149. The Committee recalls in this respect that recourse to compulsory arbitration, when this results in the prohibition of the right to strike, should be limited to services whose interruption would endanger the life, personal safety or health of whole or part of the population. The Committee considers, on the basis of this definition, that the Mint, banking services, transport services and the petroleum sector do not constitute essential services in the strict sense of the term. They do constitute, however, services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied. The Committee therefore would request the Government to amend the list of essential public services contained in section 71 of the TULRAA in line with the above conclusions so that the right to strike is prohibited only in essential services in the strict sense of the term.

150. The Committee notes that section 38(1) of the TULRAA regulates the picketing of workplaces by unionists, whereas section 42(1) relates to industrial action in the form of workplace occupations. According to the mission report, picketing accompanied by coercion of non-striking workers is a criminal offence whereas if those taking part in picketing do not use violence, then this action is considered to be legal. The same is not true for section 42(1) of the TULRAA which prohibits any "... occupation of production facilities or installations related to important businesses or the equivalent thereof as determined by Presidential Decree". The Committee considers in this respect that certain types of strike action, such as for example workplace occupations, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The Committee would therefore request the Government to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations.

151. Regarding the issue of the payment of wages during the period of industrial action, the Committee notes the Government's statement to the effect that section 44 of the TULRAA stipulates that employers have no obligation to pay wages during strikes and that trade unions cannot initiate strike action for the payment of wages during strikes. This information confirms the Committee's earlier understanding that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited under the new law.

152. As regards the issue of the payment of wages to full-time union officials, the Committee notes from the mission report that section 24 of the TULRAA prohibits employers from remunerating full-time union officials as of 1 January 2002. The Committee observes that the KCTU considers that the effect of this provision will be harmful for the union movement in the Republic of Korea which is mostly characterized by small enterprise-level unions with very limited resources. The FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation. Finally, while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level in the year 2002. The Committee considers that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore calls upon the Government to repeal section 24(2) of the TULRAA. The Committee notes that this controversial issue will be the subject of a second round of negotiations within the Tripartite Commission. In the context of the new climate of tripartism and cooperation between the social partners prevailing in the country, the Committee trusts that discussions within the Tripartite Commission will resolve this issue by taking into consideration the legitimate concerns of all the parties concerned.

153. With regard to the provisions in the TULRAA concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1), respectively, of the TULRAA), the Committee notes from the mission report that the Tripartite Agreement contains a proposal to allow unemployed (and dismissed) workers to keep their union membership at the industry-wide and regional levels. The Committee notes that although this proposal was to be adopted by the National Assembly at its special session in February 1998, members of the National Assembly decided to postpone discussion of this issue to forthcoming sessions and instead issued a resolution stating that "the National Assembly will positively consider revision of related laws". In this respect, the Committee would recall that the determination of conditions of eligibility of union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. The Committee therefore requests the Government to repeal, as provided for in the Tripartite Agreement, the provisions concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA).

154. The Committee notes from the mission report that the lack of legal status of the KCTU is not such a problem in practice in terms of its organizational status or activities and that it is carrying out the functions of a national centre of trade union organizations. According to the mission report, the KCTU provides its affiliated unions with annual guidelines for collective bargaining and directly guides them at their workplaces. The KCTU has also been given exemption from civil and penal liabilities for legitimate industrial action. The Committee notes, however, that a concrete problem arising from the non-registration of the KCTU is that it is not invited by the Government to participate in the work of the 40 or so tripartite review or consultative committees on labour matters nor entitled to participate in union assistance programmes. The main obstacle to the KCTU's registration appears to be the affiliation to it of CHUNKYOJO, an illegal organization for the moment. Noting, however, that the Tripartite Agreement provides for the legalization of teachers' unions as of 1 July 1999, the Committee requests the Government to ensure that the KCTU is registered as a trade union organization as soon as possible and at the very latest within this time frame. In the interim, the Committee requests the Government to ensure that the KCTU is invited to participate in the work of the tripartite review and consultative committees on labour matters and in union assistance programmes from which it is currently excluded.

155. As regards the legislative aspects of this case, the Committee requests the Government to provide information on any measures taken to give effect to the Committee's recommendations thereon.

Allegations of a factual nature

156. As regards the situation of Mr. Kwon Young-kil, former President of the KCTU, the Committee notes from the mission report that, although the withdrawal of the charges of third-party intervention against Mr. Kwon is expected, Mr. Kwon faces trial for the remaining charges brought against him. The Committee notes with concern that Mr. Kwon still faces charges of violating the Law on Public Assembly and Demonstration, the Traffic Law and the Law on the Collection of Contributions. Finally, a criminal charge of intrusion into private premises is pending against Mr. Kwon for the holding of the inaugural congress of the KCTU at Yonsei University on 11 November 1995. The Committee would once again firmly insist that the Government do everything in its power to ensure the dropping of all remaining charges which were brought against Mr. Kwon before the January 1997 strikes as a result of his trade union activities.

157. The Committee notes from the mission report that two trade union leaders -- Mr. Lee, C.E., Chairman of the Committee for the Democratization of the Railway Workers' Trade Union, and Mr. Kim, Im-Shik, President of the Hyundai Heavy Industry Union -- who had been the subject of this complaint have been released. The Committee further notes with satisfaction from a communication of the Government dated 17 March 1998 that two other union leaders -- also the subject of this complaint -- Mr. Hwang, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation Seoul Chapter were released from jail on 13 March 1998 on account of an amnesty ordered by President Kim Dae-Jung. In this respect, the Committee recalls that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of judicial proceedings and detentions.

158. In this respect, the Committee is pleased to learn from the mission report that the new President is seriously considering an amnesty for all those persons detained for violations of labour-related laws. According to the mission report, a total of 29 unionists are still under detention and two of these 29 have confirmed prison sentences whereas 27 are still on trial. The Committee further welcomes the assurances given by officials from the Ministry of Justice, as reflected in the mission report, that the Ministry will try to ensure a fair and rapid investigation of another 152 unionists who, while not detained, are the subject of investigations by the Ministry. The Committee considers that, in the new climate of tripartism and cooperation between the social partners prevailing in the country, it is particularly appropriate for the authorities to pursue measures which will allow for the building of a new industrial relations system based on a climate of confidence. This would involve in particular the release of all unionists detained on account of their union activities and the dropping of charges brought because of such activities. The Committee requests the Government to keep it informed of any developments concerning an amnesty for detained trade unionists.

* * *

159. The Committee notes with interest the willingness expressed by the members of the President-Elect's transition team to ratify ILO Conventions Nos. 87 and 98 in the near future. In this respect, the Committee reminds the Government that the technical assistance of the ILO is at its disposal, if it so wishes, to assist in resolving the issues raised in this case as well as other issues related to freedom of association.

The Committee's recommendations

160. In the light of its foregoing interim conclusions, noting the progress made on freedom of association issues, and noting with satisfaction the release of the four trade union leaders who had been the subject of this complaint, the Committee invites the Governing Body to approve the following recommendations:

(a) As regards the legislative aspects of this case, the Committee requests the Government:

(b) As regards the allegations of a factual nature:

(c) Noting with interest prospects for ratification of Conventions Nos. 87 and 98, the Committee reminds the Government that ILO technical assistance is at its disposal, if it so wishes.

Annex

Report of the high-level tripartite mission
to the Republic of Korea
(9-13 February 1998)

Case No. 1865

I. Introduction

At its March 1997 meeting, the ILO Governing Body's Committee on Freedom of Association requested the Government of the Republic of Korea to examine the possibility of a high-level tripartite mission being undertaken to the country in order to ensure that ongoing revisions to labour law were consistent with the principles of freedom of association. The Committee's request was made in the context of a complaint (Case No. 1865) presented to the Committee by the Korean Confederation of Trade Unions (KCTU), the Korea Automobile Workers' Federation (KAWF) and the International Confederation of Free Trade Unions (ICFTU). The substance of this case, involving various allegations of infringements of trade union rights in law and in practice, was examined by the Committee at its June 1996, March and June 1997 meetings [see 304th, 306th and 307th Reports of the Committee, approved by the Governing Body at its 266th, 268th and 269th Sessions respectively].

In December 1997, the Government agreed to receive a high-level tripartite mission to examine the issues raised in Case No. 1865, as well as related issues. This mission was composed of the following persons: Dr. L. Mishra (Government representative, India), Mr. B. Noakes (Employer representative, Australia) and Mr. U. Edström (Worker representative, Sweden). The mission which visited the Republic of Korea from 9 to 13 February 1998 was accompanied by Mr. Kari Tapiola, Deputy Director-General of the ILO; Mr. Bernard Gernigon, Chief of the Freedom of Association Branch; Ms. Catherine Comtet, Director of the ILO Office in Bangkok and Ms. Deepa Rishikesh, Legal Officer in the Freedom of Association Branch.

II. Conduct of the mission

During its visit to the Republic of Korea, the mission held meetings with the President-Elect, the Minister of Labour, the Minister of Education, the Vice-Minister of Government Administration, the Vice-Minister of Justice, as well as with senior officials from these ministries. Moreover, meetings were held with the head of the Economic Division of the President-Elect's Transition Committee, as well as with several members from the major opposition party in the National Assembly (Parliament). The mission also met with representatives of the Korea Employers' Federation, and with representatives of the two workers' central organizations, the Federation of Korean Trade Unions (FKTU), the Korean Confederation of Trade Unions (KCTU) and the Korean Teachers and Educational Workers' Union (CHUNKYOJO). Furthermore, the mission visited an enterprise, LG Electronics, where it met with management and union representatives. The mission met with members of the tripartite Korea International Labour Foundation (KOILAF) (a list of persons the mission met with is appended to this report). Finally, the mission also paid an official visit to Panmunjon (demilitarized zone between North and South Korea).

III. The special context in which the
mission took place

Political and economic developments

The mission visited the Republic of Korea (South Korea) at a time when the country was in the process of undergoing major political and economic change. Kim Dae-Jung was elected President on 19 December 1997 in the closest political victory in the country's history. Mr. Kim's election demonstrated for the first time since the nation was founded that an opposition candidate had won the presidency, and came at a time when South Korea was grappling with the consequences of a severe economic and financial crisis. It is a widely held view that the victory of Mr. Kim's National Congress for New Politics reflected voter dissatisfaction with the previous leadership, which was held responsible for the nation's economic problems which included a debt crisis, a weak banking system and problems in industrial conglomerates (chaebol).

In order to understand the complexity of the current situation, a brief explanation of its economic and political framework is necessary. It is a widely held view that one of the main underlying causes of the crisis lies with several practices followed by the chaebol which account for approximately 40 to 45 per cent of the GDP. More specifically, political control of many banks had meant that the chaebol had long enjoyed soft-budget constraints. This, combined with the heavy concentration of management and ownership in the hands of a few families, had slowed the adaptability of the firms to a changing environment. Moreover, since the system was not considered to be very transparent, it was difficult for external investors to assess the real financial situation of these groups. Finally, many chaebol were present in a wide variety of markets without due regard to profits, cash flow or potential failure.

The main proximate reason for the present financial problems was the inability on the part of the chaebol to repay foreign debt, thereby leading to a balance-of-payments crisis. According to official figures, between 1993 (when Kim Young-Sam became President) and 1997, total foreign debt doubled to the equivalent of over US$140 billion. Importantly, a large part of this foreign debt was a short-term debt, officially estimated at the end of 1997 at US$76 billion. Most of this debt was between private sector borrowers (the chaebol) and private sector lenders (foreign private banks, in particular, Japanese banks). The size of the debt, combined with its short-term nature and the fact that creditors mainly consisted of private banks, meant that the economy of the Republic of Korea was very vulnerable to a sudden shift in investors' confidence. In retrospect, the first signs of the crisis arose in the first few months of 1997 when a major steel company became bankrupt under US$6 billion in debt. This, however, did not affect confidence until late 1997, as illustrated by the high rates attached to Korean debts by international credit rating agencies. Two major conglomerates ran out of cash last summer, which combined with the financial crisis in the region led to an outflow of capital in October, and foreign exchange reserves quickly dropped. The IMF was asked to provide a stand-by loan in November and a final deal of US$55 billion was eventually signed.

Several conditions have been attached to the US$55 billion IMF loan, including a tightening in macroeconomic policies, the liberalization of foreign investment inflows, modification in the present system of corporate governance, a revamp of the country's lending guidelines to the chaebol, improved transparency in the running of the chaebol, as well as the adoption of labour market "flexibility" measures which would facilitate lay-offs and lead to higher unemployment.

It was brought to the attention of the mission during the course of its visit that it may well prove difficult for the President-Elect to adopt some of the above measures in the coming months, since his plans could be blocked or held up by Parliament (the National Assembly). In effect, the President-Elect's party, the National Congress for New Politics, holds just 78 seats in the National Assembly, as opposed to 157 for the former ruling Grand National Party (GNP). Even with the 45 seats of its allies the United Liberal Democrats (ULD), led by Mr. Kim Jong-pil, the NCNP remains well short of a majority. This factor highlighted the problems faced by the President-Elect's transition team, which was making various decisions over national affairs till his inauguration as President on 25 February 1998.

Social climate

One of the key decisions taken by the President-Elect and his transition team during the pre-inaugural period was to establish a Tripartite Commission on 15 January 1998, which would achieve permanent status after the President-Elect took office. This Commission was composed of representatives of Government, business and the two main labour organizations, the registered Federation of Korean Trade Unions (FKTU) with approximately 1.2 million members and the still unregistered Korean Confederation of Trade Unions (KCTU) with an approximate membership of 600,000. It was also composed of Members of Parliament belonging to other political parties. (A detailed list of members of the Tripartite Commission is appended to this report.) On 6 February 1998, just before the mission's arrival in South Korea, the Tripartite Commission agreed to a series of reforms to be implemented in the economic and labour-related fields. These reforms targeted economic issues such as promoting labour market flexibility through the relaxation of existing rigid employment security laws, accompanied by the introduction of unemployment relief programmes as well as the increase in the amount allocated thereto. However, they also dealt with important freedom of association issues, including the right to organize of teachers and public servants, the legalization of political activities for trade unions and of the right to organize and to hold union office for dismissed or unemployed workers at the industry and regional levels. These reforms, if they are to be implemented, would necessitate amendments to legislation currently in force and in particular to the Trade Union and Labour Relations Adjustment Act (TULRAA).

Although the tripartite agreement was to be formally signed by all parties during the time of the mission's visit to the Republic of Korea, this was not to be due to an unexpected turn of events. On the night of 9 February 1998, the leadership of the KCTU, including its acting President, which had accepted the tripartite agreement the week before stepped down in the face of opposition from 70 per cent of KCTU members who voted in an extraordinary congress against the adoption of the tripartite agreement. Instead, the KCTU, which set up an emergency task force to temporarily head it, called for renegotiation of certain provisions of the tripartite agreement, as well as for a public rally and an indefinite general strike to commence on the afternoon of Friday, 13 February 1998. The KCTU's main objections to the tripartite agreement were in relation to its provisions which eased the conditions for laying off workers without stipulating any plans for job creation. Furthermore, according to the KCTU, the fact that the tripartite agreement provided for insufficient unemployment funds was dramatized by reports that an average of 5,000 workers were already being dismissed on a daily basis.

However, the other social partners, including the FKTU, rejected calls for renegotiation of the tripartite agreement, maintaining that it was necessary in view of the acute economic crisis prevailing in the country. Finally, the emergency task force of the KCTU itself decided to call off the general strike on the night of 12 February 1998, but continued to call for renegotiation of certain aspects of the agreement. This decision was attributed mainly to the fact that there was a lot of internal dissension within the KCTU with regard to the justification of potentially disruptive strike action at that moment, especially in the face of public opinion that such action would only contribute to the deterioration of an already very shaky economy. Moreover, the KCTU seemed to be taking into account the realities of transition towards a Government which was much more committed to human and workers' rights than earlier ones. Nevertheless, the situation was indicative to the mission of how fragile the social peace still was. On Sunday, 15 February 1998, following the mission's departure from South Korea, the National Assembly passed the Bill allowing mass dismissals of workers in cases of corporate restructuring such as mergers and acquisition, as well as Bills covering bankruptcies and corporate liquidations, and authorized hostile takeovers of local firms by foreigners.

IV. Information obtained during the mission

During the course of its visit to South Korea, the mission sought to obtain as much information as possible from the various interlocutors on the following issues which were raised during the previous examination of the complaint pending before the Committee on Freedom of Association (Case No. 1865).

Matters of a legislative nature
Right to organize of teachers

The mission was informed by officials from the Ministry of Education that the employment conditions of teachers were currently governed by the National Public Officials Act, the Local Government Employees Act, the Public Education Servants Act and the Private School Act the various provisions of which prohibited private and public school teachers from forming and joining organizations of their own choosing to defend their occupational interests and to take collective action to that end. However, a Special Act on Promoting Teachers' Status had been enacted in 1991 which allowed teachers to establish educational associations and to discuss working conditions twice annually with superintendents at the local level, or with the Minister of Education at the national level. Hence, educational associations included the Korean Federation of Teachers' Associations (KFTA) but not the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) whose registration had been requested by the Committee on Freedom of Association on several occasions in the past few years.

According to the Minister of Education, it was therefore very positive that the tripartite agreement provided for the legalization of teachers' unions from July 1999. This would be done by amending the relevant Acts at the regular (autumn) session of the National Assembly in 1998. The mission was informed by the President-Elect that some difficulties might be encountered during the process of legalizing teachers' unions. This idea was facing stiff opposition from the majority Grand National Party (GNP) in the National Assembly due to the radical image of CHUNKYOJO. The President-Elect's point of view was confirmed by some Members of Parliament of the opposition GNP who indicated to the mission during a separate meeting that many members of their party, in keeping with public opinion, did not agree with the idea that teachers should have the right to organize. Moreover, they felt that the adoption of legislation was the prerogative of the National Assembly. As a result, representatives of the GNP had left the Tripartite Commission towards the end of the negotiations although they indicated to the mission that they were willing to continue negotiations. According to senior officials from the Ministry of Education as well as the Minister himself, the problem of giving the right to organize to teachers was further compounded by the special importance attached to education by parents and the general public. The South Korean people had a traditional concept of teachers who they held in very high esteem. They did not understand why teachers needed to form a union since they were not manual labourers but rather persons engaged in an intellectual activity. Moreover, the South Korean people felt that CHUNKYOJO was ideologically imbalanced and therefore should be denied the right to organize.

This view appeared to be somewhat contradicted by representatives of CHUNKYOJO and of KCTU who indicated to the mission that recent public opinion polls had shown that 70 per cent of the public and 90 per cent of teachers throughout the country supported the legalization of teachers' unions. Moreover, CHUNKYOJO and KCTU representatives were adamant that CHUNKYOJO's legalization take place immediately and not in July 1999 only since the right to organize of teachers was a fundamental and unconditional labour right which could not be considered as a trade-off or linked to the issue of the law authorizing the mass dismissals of workers. They were further reinforced in their view by the fact that in the Republic of Korea teachers had been working in unsatisfactory conditions for a long time with no means of redressing their grievances. In addition, the previous Government had committed to granting freedom of association to teachers upon joining the ILO and the OECD. They were nevertheless aware that this aspect of the Tripartite Agreement would face a degree of opposition in the National Assembly. CHUNKYOJO had therefore declared that it would withhold its right to collective action for a certain period of time as part of the agreement to legalize teachers' unions.

Right to organize of public servants

The mission was informed by the Ministry of Government Administration that, under legislation currently in force, public servants did not have the right to organize with the exception of public servants who were engaged in manual work at the Ministry of Information and Communication, the National Railroad Administration and the National Medical Centre. Hence, these three categories of public servants had established trade unions at their respective workplaces and had a total membership of 54,017.

However, the Government had decided to give a larger category of public servants the right to form and join associations within the framework of the Tripartite Commission which was going to propose a Bill to this effect to the National Assembly at its September 1998 session. If the National Assembly was to adopt this proposal, then public servants would have the right to form associations from 1 January 1999. The mission was informed subsequently that the National Assembly adopted this proposal at a special session on 15 February 1998. More concretely, this right of association meant that public servants would be given the right to establish workplace councils through which they could consult with organization heads on matters relating to the improvement of the working environment, the enhancement of performance efficiency, the settlement of grievances and the implementation of council resolutions. However, only certain categories of public servants would be allowed to join these workplace councils of which a maximum number of 14,000 would be established. Thus, public servants from grades 1 to 5 with managerial functions would be excluded from these workplace councils and only those public servants from grades 6 to 9 (supporting staff) would be allowed to join them. Moreover, public servants who belonged to special services, i.e. firefighters and the police, would not be entitled to join these workplace councils. Finally, public servants who were involved in personnel and confidential work, in budgeting and accounting, in receiving and distributing goods, in supervising general service staff, in secretarial work, in guarding security facilities and in driving passenger cars or ambulances, would be excluded from workplace councils.

The mission was further informed that the Government would gradually grant public servants the right to form and join unions when the country's economic situation improved and a national consensus had been reached on the matter. The reason why the Government could not allow trade unions for public servants immediately was that, given the fact that Korea remained a divided nation under a tenuous armistice, public servants had to shoulder the responsibility for national security and stability. Moreover, given the prevailing dire economic conditions as well as the fact that the public held the Government responsible for the crisis, the Government was in no position to accommodate even the most reasonable union demands.

Finally, the mission was informed by the Korean Employers' Federation (KEF), the FKTU and the KCTU that they believed that the right to organize of public servants should be respected.

Trade union pluralism at the enterprise level

The Minister of Labour indicated to the mission that the issue of legalizing trade union pluralism at the enterprise level had not been raised within the Tripartite Commission due to various other more pressing problems. Moreover, the unions had not requested that this matter be discussed during the recent negotiations in the Commission. He stated that the decision to delay the legalization of multiple trade unions at the enterprise level until the year 2002 had been taken by the Government to simplify the collective bargaining process at the enterprise level and not to restrict it. This delay would give unions the time to adjust to the new system of collective bargaining and thereby prevent any confusion over collective bargaining which could arise, at least initially, from the presence of two or more unions at the company level.

Representatives of the KEF informed the mission that the delay in legalizing trade union pluralism at the enterprise level was based on the reality that both management and labour needed time to adapt themselves to the new environment in order to head off confusion and disorder, not only between labour and management but also between the trade unions themselves. During this preparatory period, arrangements should be made for a new collective bargaining structure so that management could negotiate with the most representative workers' organization. In the KEF's view, these arrangements would be necessary in view of the current situation of turbulent industrial relations. Trade unions at the industry and national levels were exerting themselves to expand their respective spheres of influence at the enterprise level. In 1997, more than 300 enterprise-based trade unions delegated their bargaining rights to upper-level unions at industry and national levels in order to strengthen their bargaining power. Competition at the upper level to get more support from enterprise-based unions by committing to secure better working conditions was undermining industrial peace through exacerbating tensions and delaying collective bargaining processes.

According to the President of the FKTU, his organization wanted the introduction of trade union pluralism at the enterprise level without any delay. However, this issue had been a big source of conflict at the Presidential Commission on Industrial Relations Reform, which had been established on 9 May 1996 and which had been composed of representatives from trade unions, management and public interest groups. Management in particular had strongly objected to multiple unions at the enterprise level. He nevertheless believed that this matter would be solved smoothly as time went on. Representatives of the KCTU considered that there should not have been such a delay in rendering trade union pluralism legal at the enterprise level. However, they pointed out to the mission that the issue of such multiple unions had arisen in the past due to doubts about true internal democracy within the union movement which often had had close contacts with management or the Government. The question did not arise once true internal democracy existed within the union movement. In addition, there was a practical problem in that unions often did not have sufficient resources to set up a union in a company where another one already existed.

Ban on third-party intervention in industrial disputes

The mission was informed by representatives of the Ministry of Labour that the ban on third-party intervention in collective bargaining and industrial disputes had been lifted and that the purpose of the notification of the identity of third parties to the Minister of Labour under section 40 of the TULRAA was merely to inform the Government of those persons or organizations from whom the unions and employers wished to obtain assistance.

Representatives of the KEF indicated to the mission that initially management had opposed the lifting of the ban on third-party intervention in industrial disputes for fear that some ideologically oriented labour activists would become deeply involved in labour disputes and prolong industrial strife. However, the KEF had compromised and agreed to the lifting of this ban at the Presidential Commission on Industrial Relations Reform in 1997. Now, unions could receive assistance from upper-level unions without any procedural conditions and from any third party if the latter had been notified to the Ministry of Labour by the union. Hence, any person could intervene in collective bargaining and industrial disputes if a request to that effect was made by a union. Many unions were excessively exploiting this law by notifying too many persons from whom to get support for collective bargaining or industrial action. Some 680,000 persons were notified to provide support to unions in 170 companies in 1997, an average of 4,000 persons per company.

The President of the FKTU informed the mission that he was not concerned about the requirement to notify the identity of third parties to the Minister of Labour: this matter was a question of trust between the parties concerned. While confirming that there was now only a requirement of notification to the Minister of Labour under section 40 of the TULRAA, and that the ban on third-party intervention had been lifted, representatives of the KCTU pointed out that the notification requirement was subject to abuse as it opened the avenue for arbitrary regulation by the government authorities. The continued adherence to the notification requirement was based on a deep-seated suspicion about industrial relations and the inherent disrespect for the autonomy of internal union dynamics, democracy and leadership. The KCTU had notified the names of many "advisers" to the Ministry of Labour because failure to notify meant that non-notified persons were prohibited from making any comments or even giving a speech about an industrial dispute under the terms of paragraph II, section 40 of the TULRAA. Persons who were in violation of this prohibition were liable to a maximum penalty of three years' imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). According to the KCTU, therefore, this new measure (adopted in March 1997) was tantamount to maintaining the ban on third-party intervention.

Recourse to compulsory arbitration resulting in
the prohibition of the right to strike

The Minister of Labour indicated to the mission that the list of essential public services contained in section 71(2) of the TULRAA was in effect too broad since a dispute in any of these services could be referred to compulsory arbitration, resulting in the prohibition of the right to strike. He affirmed that the matter was on the agenda of the Tripartite Commission and would be discussed during the second round of negotiations therein, which normally would be completed within the first half of 1998. In a separate meeting with officials from the Ministry of Justice, the mission was informed that an impending strike by the Seoul Subway Workers' Union was considered as illegal because the union had not respected the legal procedures and because the strike was not being carried out to seek an improvement in the workers' employment conditions but for broader socio-political reasons. These officials nevertheless confirmed to the mission subsequently that the strike, which was avoided through a compromise solution, would have been considered as illegal in any event since the subway was an essential public service where the right to strike was prohibited.

Representatives of the KEF pointed out to the mission that the TULRAA was an improvement over previous labour law in that the list of essential public services in the TULRAA where the right to strike could be prohibited had been considerably narrowed down.

The President of the FKTU was of the view that the list of essential public services contained in the TULRAA was too broad and should be limited to strictly essential services. KCTU representatives were of the same view, especially since according to them it was common union practice in the Republic of Korea to exercise discretion during the course of a strike to exclude the vital sections of a workplace from the effects of such a strike.

Prohibition of certain types of industrial action
(sections 38(1) and 42(1) of the TULRAA)

Section 38(1) of the TULRAA regulates the picketing of workplaces by unionists, whereas section 42(1) relates to industrial action in the form of workplace occupations.

The mission was informed by Ministry of Justice officials that picketing accompanied by coercion of non-striking workers constituted interference with business and was therefore a criminal offence. If those taking part in picketing did not use violence, then this action was considered to be legal.

Representatives of the KEF informed the mission that the TULRAA prohibited striking workers from occupying production lines. Moreover, strikers could not prevent other workers from entering the workplace under this new law. They contended that these measures were aimed at protecting production facilities and securing the right of non-strikers to work.

Although the President of the FKTU felt that there were not many restrictions with regard to the above forms of industrial action, representatives of the KCTU disagreed. With regard to picketing, striking workers were not allowed to use "physical violence" or "threats" to persuade non-striking workers to participate in the industrial action under the terms of the new law. However, until now, the definition of these terms was very vague. Many situations of "violence", in their view, did not really constitute violence: for example, unionists wearing red ribbons, or casual clothes instead of uniforms, or scuffling with management objecting to their holding a meeting could be and frequently were charged with obstruction of business and arrested. KCTU representatives therefore believed that section 38(1) of the TULRAA opened itself to abuse and arbitrary application which could only worsen industrial relations at the workplace. With regard to section 42(1) of the TULRAA, KCTU representatives believed that the ban on the "occupation of production facilities or installations related to important businesses or the equivalent thereof as determined by Presidential Decree" would make strike action within company premises impossible. This clause would make all company premises, with the possible exceptions of company sports grounds, dining halls and union offices, out of bounds for industrial action. Even activities such as a sit-down strike, work-to-rule or go-slow, which normally took place within production facilities, could be construed as an "occupation" prohibited by this clause. In any event, KCTU representatives pointed out that the application in practice of the two above provisions would, in all likelihood, lead to a drastic increase in the imprisonment of unionists for their union activities and exercise of their right to strike since violation of these provisions carried a maximum penalty of three years' imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA).

Wage payment during strikes

Representatives of the KEF informed the mission that, under the terms of section 44 of the TULRAA, wages for the period of a strike action could be paid to the workers concerned if employers and unions were in agreement over this issue. They nevertheless expressed their dissatisfaction with this provision which they contended should be amended to prohibit payments during the period of industrial action. According to them, the principle of "no work, no pay" meant that any union's calls for payment of wages during strikes, as well as an employer's payment thereof, should be prohibited by legislation; moreover, any such payment by an employer should be punished as an unfair labour practice.

The President of the FKTU did not foresee any problem with this new provision, which endorsed the concept that the issue of the payment of wages during industrial action was a matter to be discussed between the parties concerned. He pointed out that in practice employers often provided some form of financial assistance to the striking workers even if they did not always pay wages. KCTU representatives were of the view that section 44(2) of the TULRAA, which prohibited unions from taking industrial action in order to demand payment of wages for a period of industrial action, was unacceptable. This was a matter to be decided by the parties concerned through collective bargaining and not something to be decided by law. The matter was made worse by the fact that a violation of the prohibition contained in this new provision was punishable by a maximum sentence of two years' imprisonment and/or a maximum fine of 20 million won (section 90 of the TULRAA).

Payment of wages to full-time union officials

With regard to section 24 of the TULRAA, which prohibits employers from remunerating full-time union officials as of 1 January 2002, the mission was informed by officials from the Ministry of Labour that this controversial issue would be the subject of a second round of negotiations within the Tripartite Commission due to be completed within the first six months of 1998.

Representatives of the KEF informed the mission that currently the wages of full-time union officers were paid by the company, and sometimes unions even demanded overtime allowances for union activities. Moreover, the number of full-time officials was not negligible, averaging one per 300 union members. A concrete example was that of Hyundai Automobile Company, which employed 30,000 workers and which had 70 full-time and 100 part-time union officials. Although employers had previously considered these payments to be inappropriate, they had been compelled to negotiate with trade unions over the number of such full-time union officials during collective bargaining. However, employers were now opposed to such payments, especially with the introduction of the multiple union system at the enterprise level in the year 2002 which would increase employers' financial burdens with the anticipated growth (threefold) in the number of union officials. KEF representatives did not believe this matter could be resolved through collective bargaining, due to the imbalance of bargaining power between management and unions in the Republic of Korea, where the latter would insist that such payments continue.

The President of the FKTU was of the view that section 24 of the TULRAA should be repealed since the matter of the payment of wages to full-time union officials should be dealt with by management and labour and should not be determined by legislation. KCTU representatives pointed out that this provision would have a devastating impact on the current situation, where unions in companies with less than 100 employees made up 63 per cent of all the unions in the Republic of Korea, and where the monthly financial resources of most of these unions were less than 1 million won. The trade union movement was unable to accumulate a substantial financial base as all "unit" unions in the Republic of Korea were enterprise-level unions. Each enterprise union was an integral union with its own president and full-time union officials and had to finance all its activities from its circumscribed membership dues.

Trade union membership and office of
dismissed and unemployed workers

With regard to section 2(4)(d) of the TULRAA relating to the non-recognition of a trade union organization if it accepted a person who was not employed as a member as well as section 23(1) of the TULRAA stipulating that union officials shall be elected from union members, officials from the Ministry of Labour informed the mission that the Tripartite Commission had agreed on considerable changes in this matter which would constitute progress towards respect of freedom of association principles. According to the proposal contained in the Tripartite Agreement, unemployed (and dismissed) workers would be eligible to become or remain trade union members (and therefore stand for trade union office) of an industry-wide or region-wide unit trade union organization, but not of an enterprise-level trade union. This proposal by the Tripartite Commission was expected to be adopted by the National Assembly at its special session in February 1998. However, the mission was informed subsequently that lawmakers had decided to discuss this matter in the coming sessions of the National Assembly citing insufficient discussion between the ruling and opposition parties during the special session of the National Assembly. Instead, they issued a supplementary resolution stating "the National Assembly will positively consider revision of related laws".

KCTU representatives indicated to the mission that the Tripartite Agreement opened the possibility of union membership for unemployed and dismissed workers. In such a case, an unemployed or dismissed worker was entitled to membership of an industrial or (geographically bound) local union although not to membership of an enterprise-level union. This represented an improvement over current laws whereby unemployed persons and retired workers, together with dismissed workers, could not become members of a trade union organization at whatever level. Indeed, one of the reasons the authorities had refused to accept the KCTU's application for registration was that some of its elected officials were persons who had been dismissed from their respective companies, thus disqualifying them from worker status according to the TULRAA.

Registration of the KCTU

The Minister of Labour informed the mission that the lack of legal status of the KCTU was not such a problem in practice in terms of its organizational status or activities. The KCTU was represented on the Tripartite Commission as well as the Central Labour Relations Commission. The only remaining obstacle to the KCTU's registration was the affiliation to it of CHUNKYOJO, an illegal organization for the moment. If the KCTU decided to expel CHUNKYOJO from its membership during the course of an extraordinary congress it was holding that very day, then it would be granted registration immediately. If the congress decided otherwise, then the KCTU could only be granted registration after 1 July 1999 (i.e. when CHUNKYOJO became a legal organization).

Representatives of the KEF pointed out to the mission that, in spite of its non-registration, the KCTU was carrying out the role and functions of a national centre of trade union organizations. The KCTU had provided its affiliated unions with annual guidelines for collective bargaining and directly guided them at their workplaces. It had also been given exemption from civil and penal liabilities for legitimate industrial action.

KCTU representatives indicated to the mission that the issue of legal recognition for the KCTU now centred around the affiliation of CHUNKYOJO and the eligibility for trade union office of some of its elected officials. While the second issue could eventually be resolved (especially since the Tripartite Agreement opened the possibility of union membership for unemployed workers), the first issue was non-negotiable. The KCTU firmly believed that teachers had the right to establish an organization to defend their interests and that this organization had the right to decide freely to affiliate with the KCTU. KCTU representatives further contended that the KCTU's lack of legal status had wide implications. For example, in terms of the KCTU's participation in policy-making advisory bodies, the Government did not invite the KCTU to participate in the work of such bodies. In practice, there were nearly 40 tripartite review or consultative committees on labour matters which the KCTU did not attend. Another problem caused by the lack of legal status was that the KCTU was deprived of a part of the Ministry of Labour's budget destined to help unions in the form of welfare programmes, retraining and education programmes, and so on. This financial assistance could only be distributed to lower-level affiliates through the central organization. Since the KCTU was illegal, however, both it and its affiliates were deprived of this form of assistance.

Matters of a factual nature
Pending charges against Mr. Kwon Young-kil,
former President of the KCTU

The mission was informed by senior officials of the Ministry of Justice that Mr. Kwon Young-kil, former President of the KCTU, was arrested and detained on 18 December 1995 and subsequently released on 13 March 1996. Mr. Kwon had been charged with violating the provisions of the Labour Dispute Adjustment Act prohibiting third-party intervention, as well as with violating the Law on Public Assembly and Demonstration, the Traffic Law and the Law on the Collection of Contributions. While the withdrawal of the charges of third-party intervention against Mr. Kwon was expected, Ministry of Justice officials confirmed that Mr. Kwon still faced trial for the remaining charges brought against him.

KCTU representatives confirmed to the mission what Ministry of Justice officials had stated. They believed, however, that an additional criminal charge of intrusion into private premises was pending against Mr. Kwon for the holding of the inaugural congress of the KCTU at the auditorium of Yon Sei University on 11 November 1995.

Developments concerning the situation of arrested
or detained trade unionists

The head of the Economy II Division of the President-Elect's Transition Team informed the mission that the issue of arrested and detained trade unionists was not the subject of negotiations within the Tripartite Commission. Nevertheless, the President-Elect had decided to deal with the situation with more leniency than the previous Government. It was, therefore, very likely that those trade unionists who were detained and charged with violating labour-related laws would be released in the near future although it was a different matter for those unionists who had been charged with violating the criminal law.

Officials from the Ministry of Justice informed the mission that currently 29 unionists had been arrested and were under detention. Two out of these 29 unionists had confirmed sentences of imprisonment whereas 27 were still on trial. A further 152 unionists were the subject of investigations by the Ministry but had not been detained. The mission was further informed that the President-Elect was seriously considering an amnesty for those unionists who had their sentences confirmed by the courts. As for those unionists who were detained but still on trial, the Ministry indicated that the matter of the release of these persons lay within the jurisdiction of an independent judicial authority. Furthermore, with regard to those unionists who were not detained but the subject of investigation, the Ministry assured the mission that it would try to ensure a fair and rapid investigation of these persons resulting in the most lenient decision possible. Finally, with regard to the situation of the four detained unionists mentioned in the case of the Committee on Freedom of Association, the Ministry indicated that Mr. Lee, C.E., Chairman of the Committee for the Democratization of the Railway Workers' Trade Union, as well as Mr. Kim, Im-shik, President of the Hyundai Heavy Industry Union, had been released. Only Mr. Hwan, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation, Seoul Chapter, remained under detention. Finally, the Minister of Labour informed the mission that a former detained leader of the Hospital Workers' Union, Ms. Cha Soo Hwang (who had not been mentioned in the case of the Committee on Freedom of Association), had recently been released.

The mission was informed by KCTU representatives that there had been some progress over the years in the way in which the Government dealt with industrial disputes in that the number of trade unionists who were arrested and detained now had decreased from previous years (an overview of unionists detained from 1988 to 1997 and provided by the KCTU is appended to this report). They contended nonetheless that it was still quite commonplace to arrest unionists on charges such as obstruction of business which was vague and open to abuse and arbitrary applications and which could only worsen industrial relations at the workplace. Finally, KCTU representatives informed the mission that currently there was a total number of 20 KCTU unionists in prison and two who were wanted by the police.

V. Concluding remarks

At the very outset, the members of the tripartite mission would like to thank the President-Elect and members of his transition team, the authorities in the Republic of Korea and especially the Minister of Labour and the Minister of Education as well as officials from the ministries the mission met with, the KEF, the FKTU, the KCTU and all other parties with whom the mission met for the high level of cooperation on their part. The members of the tripartite mission would also like to express their appreciation for the assistance provided by all those parties in better enabling members of the mission to fully understand the complex industrial relations situation prevailing in the Republic of Korea during the course of discussions which were held in an extremely positive climate. This positive climate was enhanced by the Tripartite Agreement which had been reached just before the mission's arrival in the Republic of Korea within the auspices of the Tripartite Commission, a recently launched initiative of the President-Elect.

In effect, one of the most positive aspects of the Tripartite Agreement is that it provides for the right to organize of teachers, a long-standing issue pending before the Committee on Freedom of Association. It remains to be seen, however, whether this proposal will be adopted by the National Assembly, a majority of whose members from the Grand National Party would, at least for the time being, appear to be opposed to granting the right to unionize to teachers. It is to be hoped that ongoing negotiations between the parties concerned will lead to a positive outcome on this issue in September 1998 especially in view of the fact that the organization most directly concerned has committed itself not to take collective action for a certain period of time as part of the agreement to legalize it. The legality of this organization would also appear to be the main obstacle to the registration of a major central organization in the country. During the transition period to the KCTU's registration, the Government should consider inviting KCTU representatives to participate in the work of the 40 or so tripartite advisory committees on labour matters from which it is currently excluded.

The Tripartite Agreement also introduces the possibility for public servants to establish associations from 1 January 1999 onwards and the Government has expressed its intention to grant them the right to establish unions at a later stage. It is to be welcomed that this proposal has already been adopted by the National Assembly on 15 February 1998. The mission notes the views expressed by the public authorities as regards national security and stability and the situation demonstrated by its visit to Panmunjon. However, the members of the mission consider that the right to associate (and eventually to organize) for public servants could be considerably strengthened by allowing various categories of public servants who are currently excluded from workplace councils, access thereto especially since many of them do not appear to shoulder the responsibility for national security and stability (a major reason why public servants have been excluded from the right to organize till now).

The members of the mission were pleased to learn that the President-Elect was seriously considering an amnesty for those detained for violations of labour-related laws. The fact that the Ministry of Justice plans to deal fairly, rapidly and leniently with 152 unionists who are the subject of investigations by the Ministry is also welcome news. In the new context of tripartism and cooperation between the social partners, it is particularly appropriate for the authorities to pursue measures which will allow for the building of a new industrial relations system based on a climate of confidence. This would involve in particular the release of all unionists detained for their union activities.

The mission was also pleased to obtain confirmation from all parties concerned that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited by current legislation. Moreover, the fact that most of the parties the mission met agreed that the list of essential public services currently contained in legislation was too broad and that the scope of essential public services would be discussed at the next official agenda of the Tripartite Commission was another positive development since members of the mission consider that the possibility of recourse to compulsory arbitration resulting in the prohibition of the right to strike should be limited to essential services in the strict sense of the term.

The issue of legalizing multiple unions at the enterprise level without any further delay had not been raised as a topic of discussion within the Tripartite Commission. Some parties the mission met with, especially the trade unions, while concerned that multiple unions at the enterprise level would only be allowed four years hence, nevertheless seemed to consider that this was not the most pressing problem at hand. However, it is to be hoped that the possibility of multiple unions at the enterprise level, a matter that should be left at the discretion of the unions themselves, will be put into place as soon as possible.

The same goes for the repeal of provisions in the TULRAA concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office. Members of the mission were apprised during the course of their visit of a proposal in the Tripartite Agreement to allow unemployed (and dismissed) workers to keep union membership at the industry-wide or regional level; this proposal was to be adopted by the National Assembly at its special session in February 1998, but members of the mission were informed subsequently that lawmakers had decided to postpone discussion of this issue to forthcoming sessions and had instead issued a resolution stating that "the National Assembly will positively consider revision of related laws". It is to be hoped that revision of the above-mentioned provisions of the TULRAA will take place in the near future since this issue could give rise to problems from the perspective of freedom of association.

Another controversial issue was that of the payment of wages to full-time union officials. Under the terms of the TULRAA, employers are prohibited from remunerating full-time union officials as of 1 January 2002. The KCTU is of the view, however, that the effect of this provision would be devastating for the union movement in the Republic of Korea which is mostly characterized by small enterprise-level unions. The FKTU considers that this should be a matter for negotiation between employers and workers. The members of the mission are aware that this matter will be the subject of a second round of negotiations within the Tripartite Commission. The members of the mission note that while at least some management representatives appear to be unconcerned about the current practice, others have strong contrary views and these are reinforced by apprehension concerning the effects of the legalization of multiple trade unions at the enterprise level. It is hoped that a way will be found, in the new climate of tripartism and cooperation, to resolve the various concerns on this issue.

While the previous ban on third-party intervention in collective bargaining and industrial disputes has been lifted, members of the mission were apprised of the requirement to notify the identity of third parties to the Minister of Labour under the terms of the TULRAA. Although the number of such advisers notified by one of the central organizations appeared to be excessive, the members of the mission learned that failure to notify the names of such persons meant that non-notified persons were prohibited from even making any comments in respect of an impending industrial dispute. In the context of the new industrial relations system, the members of the mission consider this notification requirement to be onerous on the unions. Moreover, concern must be expressed over the fact that violation of the prohibition on non-notified persons to intervene in industrial disputes results in penalties of three years' imprisonment and/or 30 million won in fines. These penalties appear to be far too excessive and their application in practice could have very negative connotations for industrial relations in the country.

In a general manner, it has come to the attention of the members of the mission that certain provisions of the TULRAA carry very severe sanctions. This is for example the case with the violation of the prohibition of certain types of industrial action such as workplace occupations; violations thereof are subject again to penalties of three years' imprisonment and/or 30 million won. Other penalties include a sentence of two years' imprisonment or a fine of 20 million won for violation of the prohibition on any union's calls for payment of wages during strikes. These excessive penalties could constitute an obstacle to attempts to establish a new industrial relations system founded on a climate of confidence.

Finally, the members of the mission were able to ascertain that certain provisions of the TULRAA appear to regulate in excessive detail matters that should normally be left to unions to decide in their internal rules. Alternatively, certain provisions appear to grant the authorities far too much discretionary power in decision-making in various domains when they should not. In this respect, the Government is reminded that the technical assistance of the ILO is at its disposal, if it so wishes, to assist in remedying this situation as well as the other matters raised during the course of the visit. The members of the mission were very heartened in this respect to hear the President-Elect and members of his transition team endorse the mission's view that tripartism is very important at all levels. They were further encouraged by the willingness expressed by a spokesperson for the transition team to ratify ILO Conventions Nos. 87 on Freedom of Association and Protection of the Right to Organise, 1948, and 98 on the Right to Organise and Collective Bargaining, 1949, in the near future. The members of the mission are encouraged by the progress being made on freedom of association issues and are confident that this progress will continue and enable the industrial relations system prevailing in the Republic of Korea to gradually be brought fully in line with freedom of association principles. This confidence is strengthened by the express commitment of the new President and the Government to human rights, including freedom of association, and to social justice.



Geneva, 11 March 1998.                                                                              (Signed) L. Mishra.
B. Noakes.
U. Edström.

Appendix I

List of persons the mission met with

President-Elect and members of the transition team:
His Excellency Mr. Kim Dae-Jung, President-Elect
Mr. Choi, Myung-Hun, Head of Economy II Division
Mr. Kim, Yong-Dal, Adviser to Head of Economy II Division, President-Elect's transition team

Ministry of Labour
Mr. Lee, Ki-Ho Minister of Labour
Dr. Park, Chung-Kyu Director-General for the International Labour Cooperation
Mr. Cho, Jeong-Ho Director-General of the International Labour Policy Division
Mr. Chung, Jong-Soo Director-General of Labour Policy Division
Mr. Sin, Jae-Myun Director-General for Labour Management Cooperation
Mr. Song, Bong-Keun Director of the Trade Unions Division
Mr. Chung, Hyoung-Woo Deputy Director of the International Labour Policy Division
Mr. Lee, Dae-Joong Deputy Director of the International Labour Cooperation Bureau

Ministry of Education
Mr. Lee, Myung-Hyun Minister of Education
Mr. Park, Chun-Bong Director-General of the Teacher Policy Bureau
Mr. Kim, Doo-Sik Director of the Teacher Policy Bureau
Mr. Hong, Won-Il Official from the Teacher Policy Department
Mr. Youn, Young Kyou Member of the Gwangju City Board of Education

Ministry of Government Administration
Mr. Woo, Kun Min Vice-Minister of Government Administration
Mr. Chae, Il Byung Inspector-General of the Public Service Department
Mr. Cheong, Sang Suok Deputy Director of the Public Service Department
Mr. Lee, Sang Soo Management Officer of the Public Service Department

Ministry of Justice
Mr. Won, Chung-Il Vice-Minister of Justice
Mr. Kang, Shin-Wook Assistant Minister, Office of Legal Affairs
Mr. Lim, An-Sik Director of Human Rights Division
Mr. Shin, Dong-Hyun Deputy Director of Human Rights Division
Mr. Moon, Sung-Woo Director of Third Prosecution Division
Ms. Choi, Yoon-Hee Prosecutor, Ministry of Justice

Members of Parliament from the opposition Grand National Party
Mr. Hong, Moon-Jong Member of the Educational Committee and the National Assembly
Mr. Har, Kyoung-Kun Chairman of the Policy Committee, Member of the National Assembly
Mr. Lee, Kang-Hee Member of the Labour Committee; Member of the National Assembly
Mr. Kim, Moon-Soo Member of the Labour Committee; Member of the National Assembly
Mr. Han, Young-Ae Deputy Floor Leader; Member of the Environment and Labour Committee; Member of the National Assembly

Employers' organizations

Workers' organizations

Executives

Mr. Lee Nam-Soon (Secretary General of the Federation of Korean Trade Unions)
Mr. Choo, Won-Suh (President of the Korean Federation of Bank and Financial Workers' Unions)
Mr. Kang, Sung-Chun (President of the Korean Automobile and Transport Workers' Federation)
Mr. Cho, Nam-Hong (Vice-Chairman of the Korea Employers Federation)
Mr. Kim, Hee-Chull (Chairman of Byuck San Corporation)
Mr. Woo, Sung (Vice-Minister of the Ministry of Labor)
Mr. Park, Jeang-Kyu (Director-General, International Labor Cooperation Officer of the MOL)
Ms. Song, Kyung-Jin (Director, International Cooperation Department)

Appendix II

Members of the Tripartite Commission

Chairman:
Mr. Han, G.O., Vice-President, National Congress for New Politics (NCNP)

Executive Secretary:
Mr. Cho, S.J., Member of the National Assembly, NCNP

Representatives of labour:
Mr. Park, I.S., President of the Federation of Korean Trade Unions (FKTU)
Mr. Bae, S.B., First Vice-President (Acting President), Korean Confederation of Trade Unions (KCTU)

Representatives of business:
Mr. Choi, J.H., Chairman, Federation of Korean Industries
Mr. Kim, C.S., Chairman, Korea Employers' Federation

Representatives of Government:
Mr. Lim, C.Y., Deputy Prime Minister and Minister of Finance and Economy
Mr. Lee, K.H., Minister of Labour

National Assembly (political party):
Mr. Lee, G.K., Member of the National Assembly, United Liberal Democrats (ULD)
Mr. Chung, S.G., Member of the National Assembly, NCNP
Mr. Lee, K.H., Member of the National Assembly, Grand National Party (GNP)

Appendix III

Information provided by the KCTU on an
overview of unionists in prison, 1988-97

Total number of imprisoned unionists = 2,484.


Unionists imprisoned each year

Year

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

No.

80

611

492

515

275

46

161

170

95

35

Case No. 1938

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

Complaint against the Government of Croatia
presented by
the Union of Autonomous Trade Unions of Croatia (UATUC)

Allegations: Interference in trade union activities
and with trade union assets

161. The Union of Autonomous Trade Unions of Croatia (UATUC) presented a complaint against the Government of Croatia in a communication dated 4 September 1997, alleging violations of trade union rights.

162. In response to the allegations, the Government forwarded observations and information in a communication of 29 October 1997.

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

A. The complainant's allegations

164. In its communication of 4 September 1997, the UATUC alleges that due to the adoption on 18 June 1997 of the Act on Associations, which deals, inter alia, with the division of trade union assets, the Government has contravened principles of freedom of association in that it interferes in trade union activities and with trade union assets.

165. The complainant notes that trade unions are excluded from the application of the Act on Associations, except under article 38, entitled "Social organizations' assets". Subsection 4 of article 38 permits the use of immovable assets by associations that are the legal successors of former social organizations which had been entitled to administer or use the assets. These associations are not, however, permitted to lease, sell or alienate the assets. Under subsection 5, the provisions of subsection 4 are specifically applied to immovable assets which the Union of Autonomous Trade Unions of Croatia and trade unions registered as social organizations were entitled to administer or use. Subsection 6, which is the complainant's primary cause for concern, provides as follows:

Trade unions from Item 5 of this Article shall be authorized to reach a joint agreement, within 180 days from the date of enforcement of this Act, on the method of distribution of immovable assets from Item 5 of this Article. Each trade union shall become owner of the immovable assets assigned it by the agreement. Should trade unions fail to reach a joint agreement on the distribution of these immovable assets within six months, the immovable assets shall upon the expiry of the deadline become property of the Republic of Croatia, while the Government of the Republic of Croatia or a relevant Ministry of its choice shall, based on the criteria defined by the Parliament of the Republic of Croatia, transfer the ownership rights over these immovable assets to trade unions from Item 4 of this Article within one year from the date of Parliament's definition of the criteria.

166. According to subsection 9 of article 38, trade unions that were registered as social organizations until the enforcement of the Labour Code, are obliged to submit to the Government, within 60 days from the date of the enforcement of the Act, a list of all the immovable assets that they were entitled to administer or use. If they fail to make such disclosure, pursuant to subsection 10, they lose the right of ownership over the assets under subsections 3 and 6 of article 38. Subsection 11 relates to movable assets and provides that the former social organizations that were entitled to use or administer movable assets gain ownership of them on the date of enforcement of the Act.

167. The complainant contends that the Government's intention in passing the Act on Associations is to temporarily nationalize private trade union property acquired from trade union membership fees and voluntary contributions before the beginning of the Second World War. During the socialist regime, notes the complainant, the property had been treated as socially owned property, eventually becoming socially owned property by law. However, prior to the socialist regime, the property had been registered as trade union private property. Though the amount of property at issue is relatively small (approximately 20 trade union buildings or offices), it is nevertheless, according to the complainant, vital to the survival and free activity of the trade unions. The complainant asserts that any attempt by the State to take away these assets, even if for a temporary period of time, constitutes a flagrant violation of Conventions Nos. 87 and 98, the Croatian Constitution and the Labour Code.

168. The complainant expresses concern in particular regarding subsection 6 of article 38, which gives trade unions only six months to reach an agreement on the distribution of property. In the absence of an agreement, the property is taken away from the trade unions and becomes state-owned property until it is returned to the trade unions based on criteria to be defined by the Parliament. While the Act provides for the distribution of the property within one year from the date of the criteria being defined, it does not prescribe a time frame within which Parliament is to define the criteria, thus making it possible to delay the return of assets for an indefinite period of time. According to the complainant, such delay could result in conflict among trade unions, weakening of the trade union movement, public defamation of trade unions by the state-controlled media and support and strengthening of unions under the domination of the authorities or the employers. Nor does the Act provide any clear criteria for distribution. The complainant surmises that the intention of the Government is to define through Parliament its own criteria for the distribution of trade union assets and to return them only to trade unions under the domination of the authorities or employers.

169. The complainant emphasizes that the Government's motives in enacting the Act on Associations are put into question when one considers that the Government was aware that the three Croatian trade union confederations (the Union of Autonomous Trade Unions of Croatia, the Croatian Association of Unions and the Confederation of Independent Trade Unions of Croatia) had reached an agreement on 18 May 1993, under the auspices of the European Trade Union Confederation, to open up the process of distributing trade union assets. This agreement provides, inter alia, that there will be a two-year moratorium on the distribution of trade union assets, after which period a new agreement will be concluded finalizing the distribution of trade union assets in accordance with criteria that will be agreed upon. At its extraordinary congress of 29 March 1996, UATUC adopted a "Declaration on trade union assets", promoting the distribution of trade union assets in Croatia.

170. On 14 May 1997, UATUC forwarded to the Government proposed amendments to the Associations Bill, asking that trade unions be excluded from its scope. The same day, the Council of UATUC sent a letter to the Prime Minister and Members of Parliament presenting a proposal for the distribution of trade union assets. The proposed amendments were rejected and the Act adopted, despite the objections expressed by numerous foreign trade union organizations, including the International Confederation of Free Trade Unions and the European Trade Union Confederation.

171. On 29 July 1997, the complainant filed a motion before the Constitutional Court of the Republic of Croatia to institute proceedings challenging the constitutionality of article 38, subsections 5, 6, 9 and 10 of the Act on Associations. According to the complainant, the Constitutional Court has been delaying its decision to institute the proceedings.

B. The Government's reply

172. In response to the allegations, the Government in its communication of 29 October 1997 notes that during the period of 1991 to the enactment of the Act on Associations, the Government did not want in any manner to influence the distribution of property of which the former socio-political organizations -- the Confederation of Unions of Croatia and unions registered as social organizations -- had the right of disposal or usage, but not the right of ownership until the Labour Act came into effect.

173. The Government explains that in the Republic of Croatia, there are 23 federations or confederations registered and approximately 180 unions, not all of which are affiliated to higher level organizations. According to the Government, all of the unions have attempted in negotiations with the UATUC to resolve the question of the distribution of "union properties", and in this respect, lawsuits have been pursued. Since the matter of the distribution of property has not been resolved, the Government submits that some unions that do not have the use of the property at issue have been placed in an unfavourable position; they are arguing that they are being prevented from operating on an equal basis with those unions that are using the property and thereby maintaining a stronger economic base. They have thus exerted pressure on the Government and Parliament to intervene to resolve the question.

174. As a result, the Government enacted article 38 of the Act on Associations. Since the Government did not want to decide on the distribution of the property immediately, the Act provides for a period of 180 days during which the unions are to negotiate among themselves. If the unions agree, ownership of the property will be assigned as determined through the negotiations. Only if they cannot agree will the Parliament determine the conditions for transfer of ownership.

175. The Government states that whether the distribution of the property and determination of ownership is through negotiations or conditions determined by the Parliament, the unions are entitled to continue to use the property to ensure their operations are unhindered. The distribution of the property will then make it possible for other unions who until now have been excluded from using it to operate on an equal footing.

176. The Government submits in conclusion that since the UATUC has initiated a procedure before the Constitutional Court regarding the constitutionality of article 38 of the Act on Associations, the Government does not wish to prejudice the ruling of the highest court.

C. The Committee's conclusions

177. The Committee notes that the allegations of violations of freedom of association in this case arise out of the recent enactment of the Act on Associations, which provides for government distribution of immovable assets among trade unions if the trade unions fail to negotiate an agreement for the distribution among themselves. The complainant alleges that this is unlawful interference in trade union activities and with trade union assets.

178. Firstly, regarding the Government's indication that because the Constitutional Court is seized of the matter at issue, it does not want to prejudice the decision of the Court, the Committee recalls that although the use of internal national procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, Annex 1, para. 333].

179. Regarding the substance of the case, the Committee notes that, according to the submission of the complainant, this case concerns immovable property belonging to trade unions prior to the Second World War. This property then became "socially owned" property of which unions registered as "social organizations" had the right of usage and disposal, but not the right of ownership. The distribution and ownership of this property is now regulated by the Act on Associations which provides for the trade unions to reach an agreement on the distribution within six months, failing which, the immovable assets become the property of the Republic of Croatia. In this event, the legislation provides for Parliament to define criteria for the distribution, after which time the Government is mandated to transfer the ownership of the property to the trade unions within one year.

180. The Committee further notes that the issue of the distribution of property formerly owned by the trade unions has been a concern of the trade union movement in Croatia for some time. Negotiations began among three of the confederations in 1993, though no final agreement appears to have been reached; however, the complainant adopted a "Declaration on trade union assets" promoting the distribution of assets, and presented a proposal to the Government on the distribution of assets.

181. Regarding the division and ownership of assets that were formerly private trade union assets, the Committee recalls the general principle applied in similar situations that the assets should be provisionally sequestered and eventually distributed among the former members of the organization that held the property originally, or handed over to the organization that succeeds it, meaning the organization or organizations that pursue the aims and in the same spirit as the original organization [see Digest, op. cit., para. 684]. However, the Committee notes that over 50 years has lapsed since the property at issue was owned by the trade unions. The Committee recognizes that this extended lapse of time could lead to difficulties in distributing the property [see Case No. 1869, Latvia, 308th Report, paras. 481-500]. In such a situation, the Committee recalls that it is for the Government and the trade unions to cooperate to seek an arrangement consistent with the principles of freedom of association and acceptable to the parties concerned so that the trade unions are able to carry out their activities in full independence, and on an equal footing.

182. The Committee notes that in the case at hand, the decision as to the division of formerly owned trade union assets has in the first instance been left to negotiations among the trade unions concerned. The Committee notes that the issue of distribution and ownership of the property has been an issue of concern to the trade unions for a number of years, and that at least three of the confederations, including the complainant, have been attempting, it appears unsuccessfully, to conclude an agreement regarding the division of assets since 1993. However, given the complexity of the matter at issue and the difficulties that could arise due to the large number of unions concerned in the division of assets, some of which are not affiliated to the confederations that have been attempting to negotiate a settlement of this issue, the Committee considers that the six-month period of negotiation provided for in the Act may not be sufficient. The Committee, therefore, requests the Government to extend this period if no agreement is reached within six months, to ensure that the parties concerned are given a reasonable opportunity to reach an agreement, and to keep the Committee informed in this regard.

183. The Committee notes the concerns expressed by the complainant as to the lack of criteria for division set out in the law should the trade unions not be able to reach an agreement, and the lack of time frame for the determination of such criteria, as well as the Government's assurance that in the event Parliament is required to determine the criteria for division, the unions will be entitled to continue to use the property to ensure their operations are unhindered until ownership is ultimately established. The Committee hopes that the Government will determine the criteria in consultation with the trade unions concerned, and will fix a clear and reasonable time frame for the completion of the division of the property once the negotiation period has passed; the Committee also requests to be kept informed of any developments in this regard.

184. Finally, noting that the issues raised in this case are before the Constitutional Court, the Committee requests the Government to forward a copy of the decision as soon as it is handed down.

The Committee's recommendations

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

(a) The Committee requests the Government to extend the period of negotiation provided for in the Act on Associations if no agreement is reached within six months, to ensure that the parties concerned are given a reasonable opportunity to reach an agreement, and to keep the Committee informed in this regard.

(b) The Committee hopes that the Government will determine the criteria for the division of immovable assets formerly owned by the trade unions in consultation with the trade unions concerned should they be unable to reach an agreement among themselves, and will fix a clear and reasonable time frame for the completion of the division of the property once the period of negotiation has passed; the Committee also requests to be kept informed of any developments in this regard.

(c) Noting that the issues raised in this case are before the Constitutional Court, the Committee requests the Government to forward a copy of the decision as soon as it is handed down.

 

Case No. 1933

Definitive Report

Complaint against the Government of Denmark
presented by
the Association of Drivers in Århus

Allegations: Insufficient protection against
anti-union discrimination

186. In a communication dated 9 July 1997, the Association of Drivers in Århus submitted a complaint of violations of freedom of association against the Government of Denmark.

187. The Government sent its observations in a communication dated 12 January 1998.

188. Denmark has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

189. In its communication dated 9 July 1997, the Association of Drivers in Århus submitted a complaint against the Government of Denmark for the violation of Conventions Nos. 98 and 135.

190. The complaint relates to the dismissal in 1996 of Mr. Louie Andersen from his employment with Århus Renholdningsselskab. The complainant explains by way of background that the municipality of Århus entered into a 20-year contract with the private company Århus Renholdningsselskab for the collection of rubbish.

191. In the autumn of 1995 Århus Renholdningsselskab and the municipality of Århus initiated an attempt for a new system for the collection of rubbish, called "System 2000". As a part of this project a district leader of Århus Renholdningsselskab agreed with three employees in district 66 that they were to collect documentation of irregularities in the district by taking photographs. This agreement entered into force on 15 November 1995 and remained in force until 4 December 1995, when the employees in question informed Århus Renholdningsselskab that their workers' representative, Mr. Louie Andersen, had ordered them to stop the documentation work because he wished to discuss the case at the workers' representatives meeting. The meeting was held on 5 December 1995, when Mr. Andersen expressed his dissatisfaction with the system.

192. On 28 November 1995, the Labour Inspection in the region of Århus issued an Order to Århus Renholdningsselskab, under the Danish Working Environment Act, to take effective measures which could ensure protection of the safety and health of the workers when collecting dustbins. The Order took effect as from 1 January 1996, and was discussed during a meeting in the Security Committee of Århus Renholdningsselskab on 7 December 1995, where agreement was reached to take note of the Order.

193. In a letter of 12 December 1995, Århus Renholdningsselskab accordingly informed the employees that the Order was to be complied with as from 1 January 1996, and that refusal to comply with the Order would imply an immediate termination of the employment relationship.

194. On 19 December 1995 the crews reported to the company that 170 dustbins had not been emptied because the employees had complied with the Order of the Labour Inspection, implying in fact that the working time under the applicable collective agreement was no longer sufficient due to the reduced capacity of the crews. Århus Renholdningsselskab requested the employees to finish the work, which they denied.

195. During a subsequent telephone conversation between Mr. Allan Larsen of Århus Renholdningsselskab and the workers' representative, Mr. Andersen, it was revealed that the employees had discussed the matter with Mr. Andersen and that he had advised them not to finish the work. On the next day, 20 December 1995, at about 2.20 p.m. the crew reported to the company that the usual daily work could not be finished.

196. A meeting was held between Århus Renholdningsselskab and Mr. Andersen and his substitute, Gert Jensen, after which the company ordered the dustmen to finish the work which they had refused.

197. Subsequently, Århus Renholdningsselskab alleged that Mr. Andersen, both during the meeting at Mr. Larsen's office and directly before the employees, had ordered the employees not to finish the work because it was not covered by a collective agreement. The company therefore requested the Association of Drivers to initiate arbitration proceedings in order to decide on his dismissal.

198. On 22 January 1996, the court of arbitration decided that Århus Renholdningsselskab had the right to dismiss Mr. Andersen, holding, inter alia, that he had actively interfered in the right of the employer to regulate the execution of the work.

199. According to the complainant, one particular problem in this case was whether the advice given by Mr. Andersen to his colleagues exceeded the limits for the legitimate activities of the workers' representative. On the one hand, there was the interest of Århus Renholdningsselskab to maintain its right under Danish law to decide upon the execution of the work. On the other hand, there was the legitimate right of the workers to be advised by the workers' representative regarding their rights and obligations under the collective agreement, especially in the situation in question where the Order issued by the Labour Inspection made it necessary to carry out extra work and where it was very doubtful whether such work was provided for by the collective agreement in question.

200. Furthermore, the complainant expressed its regret that the decision of the arbitration court did not indicate where the limits of the freedom of speech of Mr. Andersen should be drawn, and therefore the decision did not contribute to a clarification of the applicable rules and, on the contrary, has created severe difficulties in the predictability and foreseeability of the outcome of future cases.

201. The complainant therefore alleges that the decision of the court of arbitration does not imply that the collective agreements in question provided Mr. Andersen with effective protection against anti-union discrimination.

202. As concerns Convention No. 135, the complainant alleges that a requirement of a detailed statement of the reasons for the decision is of vital importance for an effective protection of judicial machinery in cases of dismissals of workers' representatives, as such protection is not provided for if the applicable rules are not accessible and foreseeable.

203. The complainant adds that Mr. Andersen's right of freedom of expression has also been violated and concludes that it is a workers' representative's basic right to inform his colleagues about the content of the collective agreement under which they carry out their work, and therefore there has been a violation of the ILO Constitution and fundamental trade union rights.

B. The Government's reply

204. In its communication dated 12 January 1998, the Government indicated that Århus Renholdningsselskab wanted to dismiss the workers' representative, Mr. Andersen, by the end of December 1995, due to his role in the work stoppages which took place that month. The special procedure for dismissal of a workers' representative was initiated and, as it was not possible for the parties to agree on whether there were imperative reasons for the dismissal of the workers' representative, the case was submitted for industrial arbitration. The arbitration court stated in its award of 22 January 1996 that Louie Andersen had committed such a clear and serious breach of his obligations as workers' representative that it found the employer -- Århus Renholdningsselskab -- entitled to dismiss him for imperative reasons.

205. In Denmark there is no legislation concerning workers' representatives. The rules on workers' representatives, including their special protection against dismissal, are laid down by collective agreements, in some cases supplemented by the provisions laid down in the General Agreement. The fact that rules concerning workers' representatives are exclusively based on agreements between the social partners is a tradition which is almost as old as the country's collective bargaining system.

206. Today, virtually all collective agreements contain rules on workers' representatives. The central element of these rules is the protection of workers' representatives, but the rules also deal with election, eligibility and the duties of workers' representatives. Workers' representatives enjoy special protection against dismissal which goes beyond the protection against dismissal enjoyed by other employees. The main rule is that a workers' representative may only be dismissed for imperative reasons. The dismissal will not become effective until the organizations have had the possibility to submit it to special dispute settlement procedures. The employment relationship of a workers' representative may thus not be broken off until these procedures have been brought to an end, unless the dismissal is caused by lack or shortage of work.

207. The arbitration court set forth the facts in this case as follows:

(a) Pilot project on garbage collection

208. On 5 December 1995 Mr. Andersen stopped a pilot project which was part of the establishment of a new system for collection of garbage. It appears, inter alia, from the minutes of a meeting with the management which was organized the following day -- 5 December 1995 -- that the management could not accept this step on the part of Mr. Andersen. The management was of the opinion that the workers' representative should have contacted the management if he was unsatisfied, and the management could then have suspended the work. It further appeared that it was the second time within a short period that the workers' representative had stopped the performance of work operations. At the same time, the management informed Mr. Andersen that they considered it a serious matter and that it might have consequences if repeated.

(b) Working environment order

209. On 28 November 1995 the regional working environment service issued a notice to the company to take measures to ensure a safe and proper way of collecting plastic cans so that the employees were not exposed to harmful body strains. The notice took effect from 1 January 1996, and when discussed at a meeting in the Safety Committee on 7 December 1995 it was agreed to comply with the notice. On 19 December 1995 one of the teams still had 170 collections to do. The team was asked by the management to complete the work, which they refused to do. During a subsequent telephone conversation between the management and Mr. Andersen it became clear that it was Mr. Andersen who had told the team not to finish the work.

210. Again, on 20 December 1995, several of the teams announced at the normal end of the working day that the work had not been finished. The management first asked the employees to go out and finish the work in accordance with the provisions laid down in the collective agreement on the performance of work on a piece-rate basis, which they refused to do. The management once again instructed the employees to finish the work, but this was again refused. In connection with the giving of these instructions the workers' representative intervened and stopped the execution of the work. [According to the Government, it appears from the facts of the case as described in the award that the parties did not agree on this point of the events.] By letters of 20 and 22 December 1995 the company informed the Association of Drivers that it considered the case a breach of the collective agreement in force and it requested that the case be dealt with under the special procedures to settle industrial disputes. The labour court later ruled that the work stoppages constituted a breach of the collective agreement.

(c) Dismissal procedures

211. On 28 December, the employers' association asked the "Specialarbejderforbundet" (the organization of the employees' and the workers' representative) to start procedures for dealing with the dismissal of Mr. Andersen. The reason for the dismissal was that the workers' representative had on 20, 21 and 22 December 1995 told the employees to go home at 2 p.m. although the management had instructed the employees to finish the daily collection of garbage.

212. It is stated in the award that the working time is normally between 6 a.m. and 3.30 p.m.; however, on Fridays, between 6 a.m. and 2.30 p.m. If the work makes it necessary to extend the working time beyond 3.30 p.m., and 3 p.m. on Fridays, this shall be reported to the company office half an hour in advance. The company considered that there was no doubt that the employees had a duty to perform the work to which they were bound under the collective agreement and that Mr. Andersen had interfered with its managerial prerogative when he stopped the execution of the work. The management considered this a gross breach of his duties as a workers' representative.

213. From the statements of the workers' representative, it appears that he did not consider the work to be covered by the collective agreement and that the employees had no duty to work more than 37 hours per week.

214. In its award, the arbitration court found:

The arbitration court thus ruled that he was guilty of such a clear breach of his duties as a workers' representative that there were imperative reasons for dismissing him.

215. In the Danish system, the labour market organizations are responsible for agreeing on pay and working conditions, including rules on workers' representatives, and the State has primarily introduced legislation which ensures an impartial and independent system of courts of law which may assist the social partners in their work. According to the labour law tradition in Denmark, the starting-point is that the labour court hears cases concerning breach of collective agreements, whereas disputes concerning the interpretation of collective agreements are settled by industrial arbitration. The parties in connection with industrial arbitration are normally the parties to the collective agreement in question. Normally, two arbitrators are appointed by each side as well as a jointly appointed neutral umpire. Often the umpire appointed is a Danish supreme court judge, and in concrete cases the parties may choose to elect several umpires. (In the present case, three supreme court judges had been appointed umpires.) The philosophy underlying this composition of the arbitration board is that the social partners themselves are in the best position to know how their collective agreement should be interpreted. If no agreement can be reached among the members of the arbitration board, the case will be decided by the neutral umpire.

216. In light of the above, the Government considers that Mr. Andersen's advice and activities exceeded the limits of the activities of workers' representatives. Furthermore, Mr. Andersen was effectively protected by the collective agreement supplemented by the rules on settlement of industrial disputes and the General Agreement between the DA and the LO.

217. Mr. Andersen was not dismissed because he advised his colleagues on the interpretation of the collective agreement, but because he intervened directly and told his colleagues not to comply with an order to complete the day's work which had just been given by the management. Mr. Andersen had already been given a warning by the management to the effect that if he acted in a way to influence his colleagues not to perform the work instead of going to the management to negotiate the matter, it would lead to consequences, if repeated.

218. In conclusion, the Government considers that the Danish rules on protection of freedom of association and workers' representatives are in full compliance with the obligations under Convention No. 98. Mr. Andersen was dismissed because he failed to try to solve the dispute concerning the interpretation of the collective agreement through the procedures and machinery set up to settle such disputes -- if necessary with the assistance of his trade union. Instead, he actively convinced his colleagues not to perform the work they had been ordered to perform by the management, giving rise to an imperative reason for dismissal.

C. The Committee's conclusions

219. The Committee notes that the allegations in this case concern the dismissal of a workers' representative in violation of the principles of freedom of association concerning protection against anti-union discrimination, freedom of expression and effective protection of workers' representatives.

220. According to the information provided by the complainant and the Government, there appears to be overall agreement on the factual elements of the case, with the exception of the question as to whether the workers' representative, Mr. Andersen, intervened and stopped the execution of work when the management instructed the employees a second time to finish the work which they were not able to terminate on 20 December. As conciliation procedures were unsuccessful, the case went before the arbitration court, according to the applicable collective agreement. On the above-mentioned question of fact, the arbitration court found that Mr. Andersen, by his statements concerning the collective agreement during the meeting with his colleagues on 20 December, directly influenced them not to perform the work after 2 p.m., and that he actively obstructed the management's order to finish the work. The arbitration court found that such action justified "imperative" reasons for dismissal in accordance with the collective agreement in force.

221. The complainant contends that Mr. Andersen was only exercising the legitimate activity of a workers' representative when he called into question whether the work which the employees were instructed to do was indeed considered to be covered by the collective agreement. The Government points out the employer's objection that there are specific procedures for the interpretation of collective agreements which were not followed by Mr. Andersen. The Government adds that the labour court later ruled that work stoppages constituted a breach of the collective agreement.

222. The Committee further notes that, in Denmark, specific mechanisms exist both for hearing cases concerning breach of collective agreements, the labour court, and for settling disputes concerning the interpretation of collective agreements, industrial arbitration. In constituting the arbitration courts, two arbitrators are appointed by each side, as well as a jointly appointed neutral umpire. Furthermore, these mechanisms are given force not only through the rules on the settlement of industrial disputes, but also through first-level collective agreements and the General Agreement between the DA and the LO. The Committee must therefore conclude that sufficient protection against anti-union discrimination exists in the independent machinery which has been established in consultation with the social partners, and reaffirmed through collective agreements, and that this machinery was correctly implemented in the present case. The Committee therefore considers that this case does not call for further examination.

The Committee's recommendation

223. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.

 

Cases Nos. 1851 and 1922

Interim Report

Complaint against the Government of Djibouti
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD)
-- the Organization of African Trade Union Unity (OATUU)
-- Education International (EI)
-- the Secondary Teachers' Union (SYNESED) and
-- the Primary Teachers' Union (SEP)

Allegations: Arrests, dismissals and suspensions of trade unionists
following strike action, closure of trade union premises

224. The Committee examined Case No. 1851 on two previous occasions, at its June 1996 and June 1997 meetings. [See the Reports of the Committee approved by the Governing Body at its 266th and 269th Sessions in May-June 1996 and 1997 respectively, during the course of which it formulated interim conclusions: 304th Report, paras. 255 to 286; and 307th Report, paras. 253 to 272.]

225. Case No. 1922 presented by Education International (EI), the Secondary Teachers' Union (SYNESED) and the Primary Teachers' Union (SEP) is contained in a communication dated 4 April 1997.

226. In view of the gravity of the allegations presented in these two cases, the Committee on Freedom of Association requested the Government to accept a direct contacts mission to the country. [See 307th Report, para. 272.]

227. The Government agreed to such a mission in August 1997, thus allowing the mission to take place in early 1998, and arrangements were made to that effect. The Director-General appointed Professor Jean-Maurice Verdier, a member of the Committee of Experts on the Application of Conventions and Recommendations, as his Representative on the mission which took place in Djibouti from 11 to 18 January 1998. During this direct contacts mission, the Director-General's Representative was accompanied by Ms. A.-J. Pouyat, a senior official of the Freedom of Association Branch, Ms. M. Guilio, Programme Officer, and Mr. C. Kompier, Associate Expert for international labour standards. Both Ms. Guilio and Mr. Kompier are based at the ILO Office in Addis Ababa. This office had established the contacts needed to ensure the success of the mission. The mission report is reproduced in the Annex at the end of the present report.

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

A. Situation preceding the mission

229. The allegations in Case No. 1851 related to arrests, mass dismissals and suspensions of trade union activists and officials in many sectors (railways, airport, electricity, post office and telecommunications, health care, water and education) following a strike that began in September 1995 in protest against legislation which seriously jeopardized workers' living standards. Subsequently, other strikes by teachers during 1996 in protest against delays in the payment of wages were again followed by arrests and mass dismissals of a very large number of teachers (400 teachers are said to have been suspended by a memorandum from the Minister of Education and 180 teachers are said to have been dismissed on 28 January 1996 for participating in strike action), and by the suspension and dismissal of officials of the Secondary Teachers' Union (SYNESED) and new arrests following a solidarity demonstration by teachers against the dismissal of their striking colleagues. While this was going on, a Government-sponsored trade union, the Djibouti Labour Congress (CODJITRA), was set up and, in May 1996, the premises of the General Union of Djibouti Workers (UGTD) were closed by security forces. In addition, trade union dues for the Post Office and Telecommunications Workers' Trade Union (OPT) and the Electricity Workers' Trade Union (SEED) were frozen, and the lawyer acting for the Djibouti Inter-Trade Union Association/General Union of Djibouti Workers (UDT/UGTD), Mr. Mohamed Aref, was suspended and charged.

230. Case No. 1922 presented by Education International (EI), the Secondary Teachers' Union (SYNESED) and the Primary Teachers' Union (SEP) also related to anti-union measures directed against teachers during the events of 1995, 1996 and 1997.

231. At its most recent examination of Case No. 1851, the Committee had expressed regret that the Government had not provided any specific and detailed response to the allegations, especially given that the repressive measures imposed on union activists and officials had not been lifted but, on the contrary, had worsened. The Committee had urged the Government to free the trade unionists arrested for striking in August and September 1995 who were said to be still in detention, and whose names had been listed in Annex I of its report, to keep it informed of the fate of the trade unionists still subject to judicial proceedings and to communicate the text of any legal decision handed down on the matter. It had also requested the Government to provide information on the dismissals and suspensions in 1995, 1996 and 1997 of strikers whose names had been listed in Annex II of the report, and had urged it to take steps to lift the sanctions against the strikers and reinstate them in their posts. It had in addition requested the Government to reinstate the trade union officials in their office, to end the closure of the UGTD premises by the police, which in its view constitutes a serious interference with the exercise of trade union rights, and to lift the freeze on the OPT and SEED trade union contributions. In addition, it had requested the Government to send its comments on the allegation that it set up a trade union organization supporting its cause called the Djibouti Labour Congress, and on the alleged dismissal in February 1997 of five officials of a teachers' union, the internment of 500 persons in a camp following a demonstration, and the suspension of the lawyer acting for the Inter-Trade Union Association/General Union of Djibouti Workers (UDT/UGTD), Mr. Mohamed Aref.

B. The Committee's conclusions

232. Bearing in mind that the information received by the representative of the Director-General during the direct contacts mission is given in the Annex to the present report, the Committee proposes to pass directly to its conclusions on the various aspects of the cases relating to Djibouti currently under consideration.

233. First, the Committee considers that the detailed report produced by the Representative of the Director-General demonstrates the usefulness of such missions for an in-depth and objective examination of complaints.

234. The Committee notes with interest the spirit of cooperation shown by the Government in this matter and the facilities that were made available to the mission without reservation, and expresses the hope that the Government will continue to act in the same spirit. In particular, the Committee notes with satisfaction that the mission was able to obtain all the information it required and was able to meet all the people it needed to interview in order to accomplish its task.

235. As regards the substance of the matter under consideration, in particular with regard to the arrests and detentions of trade unionists, the Committee notes with interest that there are currently no people held in detention for activities relating to the exercise of freedom of association or the right to strike, nor are any judicial proceedings currently under way for these reasons, with the exception of an appeal by the deputy secretary-general of the UGTD against a three-month prison sentence and a 60,000 franc fine for breaking the law. Because of the appeal, the individual in question has not served the sentence. As regards the judicial proceedings against the officials of the secondary schoolteachers' union SYNESED, they have now been dropped. This does not alter the fact that many people were held in custody for 72 hours at the Nagad detention centre following strike action or solidarity demonstrations in 1995, 1996 and 1997, allegedly (according to government authorities) for public order offences, that in many cases they were released only following the personal intervention of the Minister of Education, and that a trade union official was sentenced to three months' imprisonment and a fine for breaking the law after the first strike in 1995, although he has not served the sentence.

236. Under these circumstances, the Committee recalls the importance which it attaches to the right to strike, which is inextricably bound up with the freedom of association protected by Convention No. 87. The Committee emphasizes that the arrest or detention 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 of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996 para. 70] and that the sentences imposed on trade union leaders for the mere fact of having called on their members to take legitimate strike action are not compatible with respect to freedom of association. The Committee requests the Government in future to respect those principles.

237. With regard to the mass dismissals of workers in education, the Committee also notes from the mission report that the 400 teachers barred from work as alleged by the ICFTU and the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD) were in fact unemployed workers used as temporary replacements for striking teachers,recruited during the strike to look after their children and were not kept in employment. It further notes that the majority of the 180 striking teachers who had been dismissed following strike action, as well as strikers in other sectors, have been reinstated to the satisfaction of the trade union organizations concerned. The Committee notes, however, that according to workers' representatives, these reinstatements, especially in the education sector, took place after the individuals involved had been obliged to give a written undertaking not to join a trade union, although the Ministry of Education has categorically denied this. With regard to this final point, the Committee emphasizes the importance it attaches to the principle that declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement and it urges the Government to annul these declarations.

238. The Committee furthermore notes with profound regret that, according to information obtained by the mission, all the senior officials of the Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD) and a number of senior officials of SYNESED and SEP have still not been reinstated and indeed five of the individuals in question have been excluded from the public service following strike action and peaceful demonstrations in 1995, 1996 and 1997. In addition, the Committee notes that the Civil Service Ministry informed the mission that only teachers in the public service who are actively employed could belong to the two teaching unions (SYNESED and SEP). This inevitably means that the trade union officials who were dismissed from education and the teachers who were barred from the public service, as well as striking railway, airport, electricity and postal workers, are no longer recognized by the authorities as elected trade union officials who can defend and promote the interests of their members. In this connection, the Committee recalls that the loss of a person's trade union status as a result of dismissal for strike activities is contrary to the principles of freedom of association. [See Case No. 1266, Burkina Faso, 246th Report, para. 164.]

239. The Committee notes that the Government has stated that some of the striking teachers had left the country, but has further indicated that it is not opposed to taking back the barred teachers as employees if they request it.

240. The Committee expresses the hope that the Government will implement the timetable of meetings, the beginning of which was fixed at the meeting with the trade union organizations, which took place during the direct contacts mission at the Ministry of Labour with a view to examining the measures required to revoke the dismissals of the trade unionists concerned and ensure their reinstatement in their posts and office as soon as possible. This includes in particular the following persons: Ahmed Djama Egueh and Aden Mohamed Abdou (president and secretary-general respectively of the UDT); Kamil Diraneh Hared and Mohamad Doubad Wais, secretary-general of the UGTD; Habib Ahmed Doualleh, secretary-general of the Electricity Workers' Trade Union; Abdillahi Aden Ali, leader of the Inter-Trade Union Association; and three railway trade unionists, Houssein Direih Gouled, Ahmed Elmi Fod and Moussa Wais Ibrahim. All these trade unionists were dismissed after September 1995 following a protest strike two and a half years ago against the Government's economic and social policy. The Committee also calls on the Government to make every effort to ensure that the five secondary schoolteachers excluded from the public service in February 1997 and the two primary schoolteachers dismissed in 1996, who have been named by the complainant, are reinstated in their posts if they request it.

241. With regard to the freezing of trade union contributions, the Committee notes with interest that the banks which withheld the assets of the Post Office and Telecommunications Workers' Trade Union (OPT) and the Djibouti Electricity Workers' Trade Union (SEED) have restored the union dues to the officials of these unions.

242. As regards the creation of a trade union organization dedicated to supporting the Government's cause, namely, the Djibouti Labour Congress (CODJITRA), the Committee notes that the Credentials Committee of the International Labour Conference in June 1997 unanimously proposed the invalidation of the credentials of the Workers' delegate of Djibouti (Mr. Mohamoud Ali Boulaleh, secretary-general of the Djibouti Labour Congress), who had been designated by Government Decree No. 97/086/CAB as Workers' delegate of Djibouti to the International Labour Conference in June 1997. The Committee stated that: "... the evidence indicated that the Workers' delegate had been chosen from the organization that was closely linked to the Government, in preference to the Workers' organization that appeared to be indisputably the most representative in Djibouti, in clear violation of article 3, paragraph 5, of the ILO Constitution. (Record of Proceedings, International Labour Conference, 85th Session, Geneva 1997 (7 Rev.)." In the case in which there was at the very least a close relationship between a trade union and the public authorities, the Committee emphasized the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement and urged the Government to refrain from showing favouritism towards, or discriminating against, any given trade union, and requested it to adopt a neutral attitude in its dealings with all workers' and employers' organizations, so that they are all placed on an equal footing. [See Digest, op. cit., para. 305.]

243. With regard to the closure by the police of the UGTD premises on 7 May 1996, the Committee notes with satisfaction that during the meeting that took place in the office the Minister of Labour with representatives of the trade union organizations concerned in the presence of the mission, the Minister of Labour ordered the return of the keys to the spokesman of UDT/UGTD and that this was done on the same day, 15 January 1998.

244. Nevertheless, the Committee notes with concern that, according to information received by the mission from Workers' representatives, a bailiff and uniformed police officers on 7 July 1997 broke into the home of the UDT president, Mr. Egueh, who is also secretary-general of the Airport Employees' trade union, and removed union archives, although Mr. Egueh had obtained a court ruling protecting his home from such action.

245. The Committee recalls the importance of the principle of the inviolability of trade union property. Accordingly, it draws the attention of the Government to the fact that any search of trade union premises, or of unionists' homes, without a court order constitutes an extremely serious infringement of freedom of association. [See Digest, op. cit., para. 177]. The Committee calls on the Government to return the trade union archives of the UDT as quickly as possible and to keep it informed of any measures taken in this regard.

246. With regard to the suspension of Mr. Aref, the lawyer acting for the trade union organizations, the Committee notes that some elements in the testimony of the complainants contradict that of the Government. According to the information received by the mission, the Government considers that Mr. Aref was suspended for reasons unconnected with his defence of trade unionists. It is claimed that he was prosecuted for acting as advocate both for a law firm in Djibouti and a British law firm which was the opposing party in the same proceedings. His case is expected to be heard in March 1998. In the meantime, the Djibouti Bar Association has temporarily suspended him from practice. Mr. Ali Dimi, the President of the Djibouti Association of Lawyers, has also indicated that these are the reasons for the proceedings. However, the Workers' representatives contest this version of events. They believe that Mr. Aref is being subjected to sanctions for having defended them and that no Djibouti lawyer will now dare to take up the defence of the trade unionists, especially since no action has been taken on the complaints lodged by the trade unionists with the Ministry. According to a report produced by a human rights organization and sent by Mr. Aref to the mission, one claim of a purely disciplinary nature was filed by a London law firm in March 1995 but no action was taken for more than a year, after Mr. Aref had offered explanations to the President of the Association of Lawyers and to the London law firm in question. Mr. Aref was charged with fraud on 23 January 1997 and summoned to appear before the criminal court on 6 October 1997, although he was unable to obtain any details of the charges against him. During this time, the Council of the Djibouti Association of Lawyers imposed an interim ban on his practising as a lawyer with effect from February 1997, two years after the complaint made by the British law firm. Mr. Aref has lodged an appeal before the Appeal Court against the interim ban, as well as an application to the Supreme Court to quash the criminal proceedings against him. The criminal and disciplinary proceedings initiated against him are said to have been conducted in a manner contrary to the presumption of innocence and respect for the rights of the defence and to be aimed at preventing him from practising as a lawyer.

247. The Committee notes with concern that, according to the Workers' representatives encountered by the mission after these sanctions were imposed against Mr. Aref, no lawyer in Djibouti has ventured to take up the defence of the trade unionists and that no action has been taken with respect to their complaints. The Committee therefore emphasizes the importance of the principle that the safeguards of normal judicial procedure should not only be embodied in the law but also applied in practice. [See Digest, op. cit., para. 107.] The Committee requests the Government to exercise the greatest vigilance in promoting and defending freedom of association and to take any necessary measures to ensure that the complaints lodged by the trade union organizations or trade unionists concerned and those lodged by Mr. Aref are investigated, and to communicate the text of any judicial ruling on the disciplinary and penal situation of Mr. Aref, the trade unionists' lawyer.

248. The Committee also observes that, according to information received by the mission, the revision of the Labour Code is currently under way in consultation with Employers' representatives. The Committee recalls the importance of consultation with all the social partners, including Workers' representatives, in formulating social legislation, and recalls that the ILO's technical assistance is available for the current revision process.

249. The Committee has been informed that, since the return of the mission, a national tripartite seminar on the revision of the Labour Code has been held in Djibouti and that a representative of the ILO's Industrial Relations Branch was able to take part. The Committee notes this information with interest.

250. In agreement with the Committee of Experts on the Application of Conventions and Recommendations in its observation of December 1997, the Committee expresses the hope that legislation consistent with the principles of freedom of association will be adopted and that the current revision of labour legislation will lead to amendments to the Decree of 10 September 1983 which will (a) restrict the wide-ranging powers available to the President of the Republic of requisitioning public servants considered to be indispensable to the life of the nation and to the operation of essential services to those cases which, in the opinion of the supervisory bodies, the restrictions of prohibitions of the exercise of the right to strike are admissible, namely with regard to public servants who exercise authority in the name of the State or are employed in the essential services in the strict sense of the term, that is, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population or in the event of an acute national crisis; and (b) lift the restrictions on trade union elections contained in section 6 of the Labour Code, which limits the holding of trade union office to Djibouti nationals, in order to allow foreigners to hold trade union office, at least after a reasonable period of residence in the country thus ensuring compliance with Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee's recommendations

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

(a) The Committee notes with interest the spirit of cooperation shown by the Government in this matter and the facilities made available to the direct contacts mission, which was able to obtain all the information it required and to meet all the people whom it wished to interview, and expresses the hope that the Government will continue to act in the same spirit.

(b) The Committee also notes with interest that nobody is currently in prison or subject to judicial proceedings for actions relating to the exercise of freedom of association or the right to strike. Nevertheless, noting that many people were held for 72 hours at the Nagad detention centre following strikes and peaceful demonstrations in 1995, 1996 and 1997, and that the subsequent release of the persons in question was often the result of intervention by the Minister of Education, the Committee recalls the importance of the right to strike which is inextricably bound up with the right of freedom of association protected by Convention No. 87. It therefore emphasizes that the arrest or detention, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principle of freedom of association and requests the Government in future to respect that principle.

(c) The Committee also notes with satisfaction that the keys to the UGTD premises closed by the police since 7 May 1996 were returned to the spokesman of the Inter-Trade Union Association/General Union of Djibouti Workers UDT/UGDT on 15 January 1998 during a meeting that took place in the office of the Minister of Labour with representatives of the trade union organizations in the presence of the mission. Nevertheless, the Committee notes with concern that on 16 July 1997, the trade union archives of the UDT were confiscated by the authorities at the home of the union's president and have not been returned. The Committee draws the Government's attention to the principle of the inviolability of trade union premises and calls on the Government to return the archives in question as quickly as possible and to keep it informed of any measures taken in this respect.

(d) The Committee notes with interest that many workers dismissed for their participation in strikes and demonstrations have been reinstated in their office and that the unemployed serving as temporary replacements for the striking teachers were not kept on, to the satisfaction of the trade union organizations in question. However, the Committee notes with grave concern that the senior officials of the Inter-Trade Union Association who were dismissed two and a half years ago for calling for strike action in protest against the Government's economic and social policy and several trade unionists named by the complainants have still not been reinstated in their posts; and that two primary schoolteachers were dismissed in 1996 and five established secondary schoolteachers were dismissed and disqualified from the public service in February 1997 following a strike. The Committee expresses the hope that the Government will implement the timetable of meetings established at the meeting which took place during the direct contacts mission at the Ministry of Labour with the trade union organizations and urges the Government to ensure that the trade union officials and trade unionists who were dismissed or suspended are reinstated in their posts and office if they so request. The Committee requests the Government to keep it informed of any developments in this respect. In this respect, noting the conditions in which strikers were reinstated in their posts, the Committee emphasizes the importance it attaches to the principle that declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement and it urges the Government to annul these declarations.

(e) The Committee requests the Government to exercise the greatest vigilance in promoting and defending freedom of association and accordingly to take any necessary measures to ensure that the complaints lodged by the trade union organizations or trade unionists concerned, as well as those lodged by Mr. Aref, are investigated, and to communicate the text of any judicial rulings handed down regarding the disciplinary and penal situation of Mr. Aref, the trade unionists' lawyer.

(f) Finally, the Committee expresses the hope that the revision of labour legislation currently under way will take place in consultation with all the social partners, whether employers or workers, and that it will lead to the adoption of provisions consistent with the principles of freedom of association, in particular with regard to the exercise of the right to strike and the election of trade union officials. The Committee requests the Government to keep it informed in this respect.

Annex

Report on a direct contacts mission to Djibouti
(11-18 January 1998)

In communications dated 19 September and 9 December 1995, and 28 January and 12 March 1996, the International Confederation of Free Trade Unions (ICFTU), the Inter-Trade Union Association of the Djibouti Labour Union/the General Union of Djibouti Workers (UDT/UGTD) and the Organization of African Trade Union Unity (OATUU) submitted complaints of violation of freedom of association against the Government of Djibouti (Case No. 1851).

Basing itself on the complaints in Case No. 1851, supplementary information sent by the complainant organizations in March 1997 and written replies provided by the Government in February 1996 and May 1997, the Committee on Freedom of Association has twice examined this case (in May/June 1996 and May/June 1997) and has handed down interim conclusions at each of its meetings [see 304th Report, paras. 255-286 and 307th Report, paras. 253-272, approved by the Governing Body at its 266th and 269th Sessions respectively]. In addition, Education International (EI) submitted a further complaint of violation of freedom of association against the Government of Djibouti in a communication dated 4 April 1997 (Case No. 1922).

At its May-June 1997 Session, the Committee on Freedom of Association requested the Government to accept a direct contacts mission to the country [see 307th Report, para. 272].

In a communication dated 30 August 1997, the Government stated that it would like the direct contacts mission relating to Cases Nos. 1851 and 1922 to take place at the beginning of 1998. On 10 December 1997, the Minister of Labour and Vocational Training sent the Director-General of the ILO a communication accepting a direct contacts mission to the country with respect to the cases pending before the Committee.

The Director-General appointed Professor Jean-Maurice Verdier, a member of the Committee of Experts on the Application of Conventions and Recommendations, to carry out this mission which took place from 11 to 18 January 1998. Professor Verdier was accompanied by Mrs. Pouyat, a senior official from the Freedom of Association Branch, and two officials from the ILO Office in Addis Ababa -- Mrs. Martine Guilio, programme coordinator, and Mr. Coen Kompier, associate expert for international labour standards -- who had made the necessary contacts to prepare for the mission and ensure its successful outcome.

The progress of the mission

During its time in Djibouti, the mission met with, among others, the Minister of Labour and Vocational Training, Mr. Mohamed Ali Mohamed, senior officials from the Ministries of Labour, Justice, National Education and the Public Service, senior officials representing the workers of the Inter-Trade Union Coordination Group of the Djibouti Labour Union/the General Union of Djibouti Workers (UDT/UGTD), the Secondary Schoolteachers' Trade Union (SYNESED) and the Primary Schoolteachers' Trade Union (SEP), and also with senior officials from the Inter-Enterprise Trade Union Association (USIE) and the President of the Bar of Djibouti, Mr. Ali Dini.

The mission wishes to state that it had the full cooperation of all those involved. Work was able to be carried out freely and independently and the Government of Djibouti provided the facilities necessary for the optimum outcome of the mission.

Status of the cases pending before the
Committee on Freedom of Association

With reference to Case No. 1851, the Committee had noted that the substantive allegations related first of all to the fact that the two trade union federations in Djibouti, grouped together in an Inter-Trade Union Association, UDT/UGTD, had called a strike in September 1995 to protest against draft financial legislation which, according to the complainants, had had disastrous repercussions on workers' living standards, and against the Government's refusal to discuss the drafting of this legislation with the trade unions. The strike had allegedly lasted two days and had been followed in many branches of activity. It had allegedly resulted in the arrest and sentencing of many trade union officials and activists, as well as wide-scale dismissals, suspensions and disqualifications, particularly in the sectors of education (400 teachers, for instance), the Djibouti-Ethiopian railway system, the airport, electricity, post and telecommunications, health and water. Subsequently, another strike called by teachers in January 1996 to protest against the delay in the payment of salary arrears was allegedly followed by the arrest of 230 teachers, 217 of which were released shortly afterwards, and the dismissal of 180 substitute primary schoolteachers. Thirteen of the arrested teachers were allegedly ordered to appear before a court, and were later released following the intervention of their lawyers. At the same time, a trade union organization supporting the cause of the Government, the Djibouti Labour Congress (CODJITRA), was allegedly set up, the premises of the UGTD closed by security forces, trade union leaders dismissed from their duties, union contributions from primary trade unions (post and telecommunications and electricity) allegedly frozen and the lawyer of the Inter-Trade Union Association UDT/UGTD (Mr. Mohamed Aref) allegedly suspended from his duties and charged.

In its written reply, the Government had assured the Committee of its commitment to the trade unions and to democracy, but had denounced the serious social upheavals that had destabilized the country and made it necessary for the Government to call on the police to restore order. It had emphasized the fact that the President of the Republic had not suspended the Constitution and that it had preferred conciliation, mediation and arbitration as peaceful means of settling disputes, the Constitution recognizing the right to organize and the right to strike. Nevertheless, the dismissals that had taken place were the result of absence from work, violations of the freedom to work and the pursuance of purely political activities. Concerning the trade unions' headquarters, the Government had explained that the premises belonged to the State, and that the UGTD had refused to share them or to sign an agreement with the UDT on the conditions and modalities relating to their use as per the Government's request.

During its last examination of Case No. 1851 in May-June 1997, the Committee on Freedom of Association had requested the Government to release the trade unionists arrested for strike action, to keep it informed of the fate of the trade unionists who were still subject to judicial proceedings and to communicate the text of any legal decisions handed down in this connection. It had also asked the Government to reinstate the dismissed trade union officials and trade unionists who were suspended or disqualified for participating in strikes in 1995, 1996 and 1997. It had stressed the need to reinstate the suspended trade union officials in their office, to put an immediate end to the closure of the UGTD premises and to the freeze on the trade union contributions of the Post Office and Telecommunications Workers' Trade Union (OPT) and the Djibouti Electricity Workers' Trade Union (SEED). Lastly, it had requested the Government to send its comments on the complainants' most recent allegations concerning the setting up of a trade union organization supporting its cause called the Djibouti Labour Congress; the disqualification on 16 February 1997 of five officials of the Secondary Schoolteachers' Trade Union (SYNESED); the deportation and internment of 500 persons in a police camp 10 km from the capital following a peaceful demonstration organized to protest against the disqualification of the five union officials in question; and the suspension of the lawyer of the Inter-Trade Union Association UDT/UGTD, Mr. Mohamed Aref.

As regards Case No. 1922, Education International (EI), the Secondary Schoolteachers' Trade Union (SYNESED) and the Primary Schoolteachers' Trade Union (SEP), in a communication dated 4 April 1997, criticized the trade union situation in the education sphere in the light of Conventions Nos. 87 and 98, both ratified by Djibouti. They explained that these two trade unions, established in 1994 and 1995 respectively, had on 9 June 1996 concluded an agreement with the Government concerning teachers' salary arrears; these had been paid only partially and irregularly for a period of two years, following both threats of and actual strike action on several occasions, with the unions always remaining open to negotiations with the Government. On that very day, in fact, the Minister of National Education had promised the secretary-general of the Djibouti Labour Union (UDT), to which the two trade unions are affiliated, to respond to their demands following the lifting of the boycott, and the trade unions had taken him at his word. The teachers' claims also related to the request for the payment of four months of salary arrears, the withdrawal of a decree to abolish the right to housing for teachers and the reinstatement in their posts of trade union officials and trade unionists. The Government, however, allegedly did not honour the agreement and, once classes had resumed on 14 and 15 September 1996, the strike began again. Repressive measures were allegedly intensified and peaceful demonstrations violently suppressed. On 16 September 1996, the Minister of National Education allegedly punished the SEP and SYNESED trade union leaders and sent them to remote regions of the country. A number of teachers were allegedly dismissed. On 5 October, a peaceful demonstration organized by the SYNESED to mark World Teachers' Day was allegedly violently put down by the police. Several people were allegedly injured, one seriously. Sixty teachers were allegedly arrested and sent to the Nagad detention centre. On 17 November, memorandum No. 185/96/DGEN prohibited suspended teachers access to educational establishments and from organizing meetings. From 4 December 1996 onwards, teachers called staggered two-day strikes followed by two days of classes, all the while asking the Minister of National Education to renew talks with the SEP and the SYNESED. On 16 February 1997, the Public Service Disciplinary Council dismissed five teachers who had been suspended, all SYNESED officials, which led to a further demonstration of solidarity which was put down with force. Hundreds of teachers were allegedly sent to the Nagad detention camp and then released in the desert with neither food nor water at the beginning of March 1997. The Minister of National Education then allegedly set up, as from 4 March 1997, a committee made up of two non-union teachers per establishment to address difficulties. The complainants state that Mr. Mohammed Aref, the lawyer of the unionist teachers, was allegedly suspended from his duties. They request the lifting of sanctions, the application of the collective agreements concluded in June 1996 and the payment of salary arrears.

Information collected during the mission
Political and economic situation

The Republic of Djibouti is a country with an area of 23,000 km2, a population estimated at 600,000 inhabitants and a natural growth rate of 3 per cent per year. Two-thirds of the inhabitants are concentrated in the capital, Djibouti. The semi-desert hinterland offers very little arable land, and as a result agriculture faces serious restrictions in terms of both soil and water. The economy is largely based on services centred around the port, the railway, the public service and the French military garrison, which account for 76 per cent of the gross domestic product (GDP). Between 1983 and 1987 the country was affected by severe drought. Huge losses of livestock, the main resource of the nomadic peoples, led to an influx of refugees in urban areas where unemployment was already high. Lastly, the economy was seriously disrupted between 1991 and 1994 as the result of the civil war opposing the Government and the forces of the Front for the Restoration of Unity and Democracy (FRUD), representing the Afar rebellion.

The conflict ended in December 1994, when the Government of Djibouti signed a peace agreement with some of the constituents of the FRUD.

In September 1992, a referendum to amend the Constitution introduced the multi-party system. In April 1997 the FRUD held its first congress. During this congress it transformed itself into a legal political party, thus becoming the fourth political force in the country.

Djibouti is one of the world's least developed countries (LDC) and is ranked 164th (out of 174) in the classification established by the United Nations Development Programme (UNDP) in accordance with the human development index (HDI).

The literacy rate is among the lowest in the world (44 per cent). Formal education is primarily available in urban centres. There are no universities and very little vocational training. All economic sectors suffer from a shortage of qualified manpower.

In 1993 life expectancy was estimated at 48 years, with an infant mortality rate of 114 per 1,000.

Djibouti's development prospects depend largely on its ability to become a centre for services and the transit of goods for the subregion.

Article 15 of the Constitution of 4 September 1992, gives workers the right to establish trade unions and to strike.

Four political parties are authorized. These are the People's Progress Assembly (RPP), currently in power, the National Democratic Party (PND), the Party of Democratic Renewal (PRD), recently divided in two, one of which is not legal according to the governmental authorities, given that the principal officials have been removed from their posts, and although complaints have been lodged they are still pending action, and the Front for the Restoration of Unity and Democracy (FRUD). Lastly, again in the view of the governmental authorities, the Group for Democracy and the Republic (GDR) is an illegal political grouping to which Mr. Ismael Guedi Hared, a former cabinet director of the President of the Republic, belongs. For many years he worked in the service of the President of the Republic, but has since been deposed, having been branded a political opponent.

Sixty-five deputies were elected on 19 December 1997 to the Legislative Assembly, and on 28 December 1997 there was a cabinet reshuffle. The Minister of Labour and Vocational Training, Mr. Osman Robleh Daach, in office during the events which are the subject of complaint, has been called to other ministerial duties. The current Minister of Labour and Vocational Training, Mr. Mohamed Ali Mohamed, who was Minister of Finance and Economy and the Minister behind the Finance Act contested by the complainant workers' organizations in 1995, was only appointed to his new position on 28 December 1997.

According to the workers' representatives met by the mission, the amended Finance Act of 1995, the object of the initial complaint, was declared unconstitutional by the Constitutional Council three months after its adoption.

Arrests, detentions, judicial proceedings

When the mission arrived in Djibouti, the governmental authorities and the workers' representatives confirmed that no trade unionist was currently being detained and that practically no judicial proceedings were pending for trade union officials or trade unionists. Only Mr. Mohamed Doubad Wais, deputy secretary- general of the UGTD and secretary-general of the Post Office and Telecommunications Workers' Trade Union (OPT) was sentenced on 14 September 1995 by the Court of First Instance of Djibouti, in a flagrante delicto hearing, for an affront to the Minister of Labour, to three months' imprisonment and a fine of 60,000 Djibouti francs. However, as the party concerned has lodged an appeal, the sentence has not yet been enforced. The judicial proceedings brought against the secondary schoolteachers who are SYNESED officials have effectively been dropped.

On the subject of the massive number of arrests of trade union officials and trade unionists in recent years on the occasion of various labour disputes and demonstrations, the governmental authorities of the Ministry of Justice explained that the Minister of Justice was now the person responsible for human rights. The cases that have come before the courts concerning disturbances to law and order did not result in any sentences. The arrests that occurred never went beyond the legal duration of police custody, which is 72 hours in Djibouti and which can be extended to eight days outside the town.

As regards the Nagad detention centre, the governmental authorities explained that it is a centre where people illegally in the country are provisionally detained before being deported. They did, however, acknowledge that the centre may at times have been used for other purposes. The governmental authorities from the Ministry of National Education acknowledged that people had been arrested for disturbances to law and order, but indicated that the problems had been settled within 72 hours following the personal intervention of the Minister for National Education.

With regard to alleged searches without the appropriate warrant, the governmental authorities from the Ministry of Justice pointed to a general lack of knowledge and explained that the judicial authorities can themselves decide to hear cases involving such violations. In any case, they noted, the alleged victims must lodge complaints. They explained that the rule of law must be learned. During the colonial period public opinion held that the criminal judge played an eminently repressive role. Litigants should now be aware that the criminal judge plays a part in the protection of citizens. On this point, the workers' representatives emphasized that citizens, and in particular the members of trade unions, were not encouraged to trust the justice system, no action being taken on complaints lodged by them.

On a general note, the governmental authorities of the Ministry of Justice recalled that the Constitution, the Labour Code and civil service regulations recognized the right to organize and the right to strike for workers and public officials, but that problems arise as to the application of the instruments, notably due to the lack of dialogue. After 1977, the date of independence, the trade union movement and the political movement were not independent. An independent trade union movement emerged following the adoption of the new Constitution in 1992, but the authorities did not change. Trade union officials were formerly appointed by the public authorities. Thus, the secretary-general of the UGTD was a Member of Parliament and had no independence vis-à-vis the Government. The public authorities had trouble understanding that the trade unions could rise up against them. The authorities must be tolerant of trade union action, but trade unions must also learn to abide by the law.

Dismissals, transfers, penalties, disqualifications
for strike action

The workers' representatives presented the mission with a list of trade union officials who remained dismissed or disqualified following the protest strikes against the Government's economic and social policy held in 1995, 1996 and 1997. The list included the senior management of the Inter-Trade Union Coordination Group UDT/UGTD Coordination Group, the secretary-general of the Electricity Workers' Trade Union, the secretary-general of the Secondary Schoolteachers' Trade Union and several trade union officials and trade unionists from the railway, primary and secondary education sectors. They recalled that the two trade union federations UDT/UGTD had called a legal strike to protest the contents of a corrective Finance Act from 6 to 23 September 1995, in accordance with provisions relating to the right to strike, as guaranteed in the Constitution of 4 September 1992, and that all necessary measures had been taken to ensure the operation of minimum services as stipulated in the regulations governing the various sectors of economic activity. They explained that on 14 September 1995, an order to return to work was imposed by the highest state authority and that, from 12 September onwards at the post office and the airport and from 16 September in the railway sector, trade union officials were issued with dismissals on the grounds of having abandoned their posts.

Trade union officials of the Inter-Trade Union Association
UDT/UGTD dismissed since September 1995

1. Mr. Ahmed Djama Egueh, president of the UDT and joint president of the Inter-Trade Union Association.

2. Mr. Aden Mohamed Abdou, secretary-general of the UDT and spokesman of the Inter-Trade Union Association.

3. Mr. Kamil Diraneh Hared, secretary-general of the UGTD and joint president of the Inter-Trade Union Association.

4. Mr. Mohamed Doubad Wais, second secretary-general of the UGTD and secretary-general of the OPT trade union.

5. Mr. Habib Ahmed Doualleh, secretary-general of the Djibouti Electricity Workers' Trade Union.

6. Mr. Abdillahi Aden Ali, trade union official of the Inter-Trade Union Association.

Secondary schoolteachers suspended since August 1996,
then disqualified from the public service on 16 February 1997

1. Mr. Souleman Ahmed Mohamed, deputy secretary-general of the UDT and former secretary-general of the SYNESED.

2. Mr. Mohamed Ali Djama, deputy secretary-general of the SYNESED.

3. Mrs. Mariam Hassan Ali, former secretary-general of the SYNESED.

4. Mr. Kamil Hassan, information secretary of the SYNESED.

5. Miss Mallyoun Benoit Frumence, documentation secretary of the SYNESED.

Primary schoolteachers dismissed in 1996

1. Mr. Abdoulfatah Hassan Ibrahim, secretary-general of the SEP.

2. Mr. Ahmed Ali Sultan, trade union official of the SEP.

Members of the Djibouti-Ethiopia Railway Workers'
Trade Union, dismissed by decision of the railway
management on 23 September 1995 for physical
aggression against an official

1. Mr. Houssein Dirieh Gouled.

2. Mr. Ahmed Elni Fod.

3. Mr. Moussa Wais Ibrahim.

According to the workers' representatives met by the mission, Mr. Kamil Diraneh Hared, secretary-general of the UGTD, had been dismissed on 16 September 1995 by the Djibouti railway management for absence from his post. He was reinstated by way of memorandum No. 37/97 dated 15 April 1997 from the director-general of the railways. This memorandum was cancelled by a further written memorandum from the president and vice-president of the board of directors of the railways, the Transport Ministers of Djibouti and Ethiopia respectively, on 21 April 1997. Thus the dismissal remains in force. The other trade unionists listed are included in Annex II to the 307th Report of the Committee on Freedom of Association. They are not mentioned as being among the trade union officials who remain dismissed, given that they have either been reinstated or are living in exile in France or Canada.

With respect to Case No. 1922, the governmental authorities of the Ministry of Labour indicated to the mission that they had not received a copy of the complaint submitted by Education International (EI) and the two teachers' trade unions (SYNESED and SEP) which are the complainants in this case. The mission thus personally presented the Ministry's officials with a copy of the complaint.

The mission also met the workers' representatives and the governmental authorities of the Ministries of National Education and the Public Service in connection with this case. These authorities stated that the majority of the contractual primary and secondary schoolteachers have been reinstated in their jobs. They acknowledge that five public service teachers, named by the complainant, have been disqualified from the public service.

The workers' representatives provided memorandum No. 13861/95/MEN dated 12 September 1995 relating to the disqualification of all the substitute primary schoolteachers who had not returned to their posts on 9 September 1995 and who, as a result, were disqualified from their duties on 13 September 1995. This memo is signed by the Minister of National Education, Mr. Ahmed Guirreh Waberi. They also explained that one of the disqualified officials, Mrs. Hassan Ali, secretary-general of the SYNESED, who was suspended from her duties on 15 August 1996 and then, in the same way as the other public officials, disqualified from the public service on 16 February 1997, has had to exile herself in France where she joined her spouse, a French teacher serving on voluntary service overseas whose employment contract in Djibouti was not renewed.

According to the governmental authorities, the employment contract of this teacher on voluntary service overseas had previously been renewed and expired in the normal fashion, VSO workers never remaining employed in a country for more than six years.

The workers' representatives also indicated that a contractual teacher, Miss Khadija Aboulkader Abeba, had had to leave the country for Canada, that one teacher, Mr. Abdourachid Ali Abdo, had changed job and that Mr. Farah Abdillahi, secretary-general of the SYNESED, transferred to a post far from the capital, had returned to Djibouti at the start of the new school year in October 1997, having had to produce a medical certificate to prove an occupational accident, notably a foot injury.

As regards the alleged disqualification of 400 teachers by way of a memorandum from the Ministry of National Education, the governmental authorities of the Ministry of National Education denied that this had occurred. They explained that following wildcat strikes held in 1996, approximately 400 unemployed persons were mobilized to replace the tenured and contractual teachers involved in strike action for the duration of the strike, in order to ensure the care of the children. However, to the trade unions' satisfaction, once the strikes were over the primary and secondary schoolteachers, both tenured and contractual, were reinstated in their posts, and the 400 unemployed persons who had been called upon to replace them were no longer kept in employment. On the whole, the workers' representatives confirmed this version of the facts, adding nevertheless that the teachers who were reinstated in their posts had to undertake in writing that they would not belong to a trade union, something the governmental authorities of the Ministry of National Education denied.

Concerning the alleged non-renewal of 180 teachers and assistant teachers, the governmental authorities of the Ministry of National Education stated that those teachers were reinstated following three weeks of strikes after negotiations with the Secondary Schoolteachers' Trade Union (SYNESED). However, they explained that given the fact that 1,000 teachers are involved in primary education, including 400 substitute assistant teachers, discussions were held with the Primary Schoolteachers' Trade Union (SEP) concerning, in particular, the granting of tenure to the substitute teachers and the particularly considerable salary arrears owed to substitute teachers. The governmentalal authorities of the Ministry of National Education acknowledged that some substitute teachers had not had their contracts renewed. This was not, they said, due to strike action, but because the authorities would like the recruitment of teachers to adhere to the usual procedure for the training of teachers, namely qualifying at teachers' training college.

The workers' representatives stated that following the strikes a number of assistant teachers in service for some years, in some cases for many years, who did not comply with the authorities' request to return to work, received notification of the severance of their employment contracts; they provided the memorandum dated 12 September 1995 in support of their claims. With respect to the granting of tenure to primary schoolteachers, the representatives of the primary schoolteachers did not contest the manner of recruitment in this sector, and for years have been calling for suitable training for such teachers, with no result.

On a general note, the governmental authorities of the Ministry of National Education explained that the educational system works, but that the delays in the payment of salaries constitute a financial problem affecting all those who come under the state budget, including public officials and contractual workers in the public and para-public sectors. The Minister of Labour even told the mission, in support of this point, that the wage bill for public expenditure was 17 billion Djibouti francs, while revenue amounts to only 12 or 13 billion Djibouti francs. As a result teachers, who represent the third budgetary item after national defence and the interior, receive their salary late. At present they are awaiting two months of salary arrears for 1995 and three months of salary arrears for 1997. The governmental authorities of the Ministry of National Education told the mission that these salary arrears do not come under the Ministry of National Education, that the Ministry is doing all it can to ensure the teachers are paid and that it hopes to be able to rely on strong trade unions, particularly vis-à-vis the Ministry of Finance. They explained that in Djibouti the work of teachers is noble and respected, but that it is true that teachers do work in difficult conditions. There had been no transfers for the sake of punishment, the Ministry had simply been seeking to distribute teachers throughout the whole of the territory. Moreover, the secretary-general of the SYNESED, Mr. Farah Abdillali, who had been transferred to a distant province, returned in October 1997 to Djibouti after having submitted a medical certificate showing he had suffered an occupational accident. The Ministry of National Education does not put into question the teaching ability of dismissed or disqualified teachers; on the contrary, it is doing its best to reinstate them. It is in this spirit that the contractual teachers have been reinstated. Two of the five disqualified teachers have asked to be reinstated. Their case is currently under examination.

The governmental authorities of the Ministry of National Education gave the mission a written communication that this Ministry had sent to Education International (EI) on 6 April 1997 in response to the complaint that the Organization had submitted to both the ILO and to the Ministry of National Education in Djibouti, i.e. two days after EI submitted the complaint to the ILO. According to the communication, which partly responds to the complaint contained in Case No. 1922, but which had not been brought to the attention of the Committee on Freedom of Association, talks had been resumed with the SEP and several meetings had allowed negotiations to advance. After two weeks of strikes teachers returned to their classes. Teachers who had been punished for abandoning their posts were taken back and even reinstated in the public service.

As regards dialogue with the SYNESED, the Minister of National Education personally went to teaching establishments to discuss a return to work with the teachers. Upon the suggestion of a delegation of striking teachers from the Djibouti State Secondary School, a meeting between the members of a teachers' committee (appointed by the trade union) and the general directorate of National Education was held on 8 March 1997. Six points were raised during that meeting:

In addition, the written communication indicates that the Minister of National Education had called for continued dialogue and added that the secondary schoolteachers had returned to work after four weeks of strikes. He confirmed that some teachers were arrested outside teaching establishments following disturbances to law and order, and were later released following his intervention. He recalled that the maintenance of law and order did not come under the competence of his Ministry. Lastly, he stated that a further meeting between national education officials and trade unionists was held on 25 March 1997 and considered rejecting decisions not to renew the contracts of certain trainees. Other issues considered during the meeting included housing, the salaries of dismissed persons, freedom of association (in particular the free movement of representatives within establishments), salary stoppages and the reinstatement of dismissed workers.

It appears to the mission that this meeting did not culminate in a reconciliation report on all the points under examination, as witnessed by the indications provided by the workers' representatives and corroborated by the governmental authorities.

On the question of disqualifications, the governmental authorities of the Ministry of the Public Service explained that all state officials had salary arrears, and that the mediation committees, made up of representatives of the Ministries of Labour, Education and the Public Service, had met with the teachers, and acceded to their requests except for that relating to the salary arrears, something which was affecting all public and para-public sector officials and employees. Whilst the reconciliation reports testify to this, the trade unions had been giving false information. The 15 days' notice required by law to call a strike in the public service had not always been respected. The governmental authorities of the Ministry of the Public Service recalled that officials were bound to a duty to preserve secrecy. They had nevertheless placed trade union statements in opposition newspapers and urged boycotts and corrections of examinations. This action resulted in suspensions in August 1996 and the appearance of five state-employed teachers before the Public Service Disciplinary Council, the decisions of which were handed down in February 1997.The Disciplinary Council, made up of six members and chaired by the Minister of the Public Service, had heard the rapporteur appointed by the two parties and had handed down, in secret, decisions adopted by a majority of votes in the five cases, proposing that the President of the Republic disquality the persons concerned. In at least one case, the decision had been adopted on the basis of the Chairman's casting vote following a tie in the voting. The disqualification was therefore announced by the President of the Republic in February 1997. Appeals to the Administrative Court are no longer possible, given that the three-month limitation period for appeals is over. Whilst the governmental authorities of the Ministry of the Public Service indicated that they would not oppose the reinstatement of the disqualified teachers as contractual workers if this were requested of them, they did rule out the possibility of reinstating the persons concerned as public servants which, in their view, will mean that they will not be able to be re-elected as trade union officials of the SYNESED, the union of state-employed teachers.

On this point, the workers' representatives of the teachers belonging to the SYNESED indicated to the mission that the disciplinary councils that had disqualified them did not include any teachers and that they had not received any formal notification of their disqualification, which is why they had been unable to lodge an appeal on these disqualifications with the Administrative Court. Furthermore, they indicated the statutes of the SEP and the SYNESED, of which they gave the mission a copy, permit all primary and secondary schoolteachers in Djibouti, whether they are public officials or not, to belong to these trade unions.

Freeze on trade union contributions

The workers' representatives informed the mission that the private banks holding the assets of the Post Office and Telecommunications Workers' Trade Union (OPT) and of the Djibouti Electricity Workers' Trade Union (SEED) returned the workers' contributions to the trade union leaders of these trade unions.

Djibouti Labour Congress (CODJITRA)

The workers' representatives told the mission that this newly established federation had no following within the country, that it represented just one person -- the official who had established it and who was close to the Government. They provided the mission with press releases from that federation showing its support for the measures taken by the Government and showing the appointment of its secretary-general, Mr. Mohamoud Ali Boulaleh, in Government Order No. 97/086/CAB, as the Djibouti workers' representative to the June 1997 session of the International Labour Conference. They also provided the mission with the decision from the Credentials Committee of the June 1997 session of the International Labour Conference, which unanimously considered that the credentials of the Djibouti Workers' delegate should be invalidated. The Credentials Committee found that the evidence indicated the following:

... that the Workers' delegate had been chosen from the organization that was closely linked to the Government, in preference to the workers' organizations that appeared to be indisputably the most representative in Djibouti, in clear violation of article 3, paragraph 5, of the ILO Constitution (Record of Proceedings, 85th Session, Geneva, 1997, Committee Reports, page 7/17).

The workers' representatives also gave the mission a further press release from the CODJITRA which reads as follows:

The CODJITRA is a social, strong and democratic institution which shares the same ideals as the current leaders, thus is close to the ruling party, in this case the People's Progress Assembly (RPP).

The release concludes that "the content of the report of the Credentials Committee of the 85th Session of the International Labour Conference and of the 307th Report of the Committee on Freedom of Association constitutes a serious violation of Articles 2 and 3 of ILO Convention No. 87".

Trade union premises

The workers' representatives explained to the mission that the premises of the UGTD were still closed. At first they had wanted to find separate premises for the UDT, but subsequently the representatives of the UGTD and the UDT fully agreed to share these premises which had been built in 1958 for seafarers by the General Confederation of Labour -- Force Ouvrière (CGT-FO). The Government had tried to impose unacceptable conditions concerning the use of the trade union premises, including a number of prohibitions, on the UGTD and the UDT. They said that they would like to have the seals unconditionally removed from the trade union headquarters and to have the building returned to its original condition. These measures would ensure that the Inter-Trade Union Coordination Group UDT/UGTD could hold union meetings without having to ask authorization from the Ministry of the Interior only to have it refused.

Furthermore, the workers' representatives explained that on 7 July 1997 a judicial marshal accompanied by uniformed police officers forced the door of the private residence of the president of the UDT (Mr. Egueh), the joint president of the Inter-Trade Union Association, and the secretary-general of the Airport Workers' Trade Union, removing the UDT trade union records. Mr. Egueh subsequently won the case on the matter of his housing.

Judicial proceedings relating to the suspension of Mr. Aref,
the lawyer representing the trade union organizations

As regards the suspension of Mr. Mohamed Aref, the governmental authorities of the Ministry of Justice told the mission that he had been suspended for matters unrelated to the defence of trade unionists' interests. It has been alleged that he is currently under criminal investigation for having defended both a private company in Djibouti and the opposite party, a company coming under British law, in the same lawsuit. The case was to be tried in January 1998 but was postponed until March 1998. In the meantime, the Djibouti Bar has temporarily prohibited Mr. Aref from practising as a lawyer. Mr. Ali Dini, President of the Bar of Djibouti, imposed the prohibition on the same grounds given for the carrying on of the criminal investigation.

The workers' representatives strongly contest this version of the facts. In their view Mr. Aref is being punished for having defended them, and as a result no lawyers in Djibouti dare defend trade unionists, especially considering that the complaints lodged with the government procurator's office have not been addressed.

Documents from the International Federation of Human Rights Leagues (IFHR) and from the National Federation of Unions of Young Lawyers (FNUJA) were sent by Mr. Aref to the mission in support of the information supplied by the workers' representatives.

A letter dated 26 January 1996 sent to the President of the Republic of Djibouti, the International Federation of Human Rights Leagues (IFHR) provides information concerning threats and administrative and police harassment vis-à-vis Mr. Aref, aimed at intimidating him and forcing him to abandon certain cases in progress. The letter also expresses concern at the paralysis seen in the judicial system, given that the complaints lodged by Mr. Aref with the government procurator have not given rise to any investigation into the case.

The report drawn up by the judicial observation mission carried out in Djibouti from 4 to 11 October 1997 by the National Federation of Unions of Young Lawyers (FNUJA) mentions the initial difficulties of undertaking such a project, which included the attempted exclusion of the lawyer conducting the mission. The lawyer was subsequently able to meet numerous representatives of political and social life in Djibouti, as well as several magistrates, and to gather substantial information. Recounting multiple violations of human rights and liberties in Djibouti, the report also refers to serious irregularities and violations of elementary principles guaranteeing a fair trail committed during trial. This applied in particular to trials concerning four Members of Parliament and the President of the Constitutional Council who had been removed from office after having chaired a sitting during which the Council vitiated the procedure of the lifting of immunity from these Members of Parliament. The Council of the Inter-Parliamentary Union meeting in Cairo in September 1997 had expressed its deep concern that Mr. Aref had undertaken to defend the parties in this matter.

According to the report, Mr. Aref himself, an active champion of human rights, was charged with fraud on 23 January 1997. A disciplinary complaint had been lodged by a London lawyers' firm in March 1995 but no further action had been taken for over a year following the explanations Mr. Aref had given the President of the Bar and the lawyers' firm. He was then summoned for attempted fraud before the Criminal Court in a hearing on 6 October 1997, Mr. Aref had been unable to obtain any details on the charges against him during the hearing preceding his first appearance, following which no pre-trial investigation measures were conducted by the examining magistrate. A Parisian lawyer whom Mr. Aref requested to defend him was turned away and forced to return to France immediately. During the trial the London firm and the government procurator's office requested the postponement of the case, which the court agreed to at once, despite opposition from Mr. Aref's defence lawyers. The government procurator (on the intervention of a Paris lawyer) subsequently informed the court that the case was postponed pending a decision from the Supreme Court on an application for judicial review by Mr. Aref raising arguments for the nullity of the proceedings. This is still pending before the Supreme Court.

On the disciplinary level, the Bar Association Council of Djibouti had decided in February 1997, almost two years after the disciplinary complaint from the British lawyers' firm, to provisionally prohibit Mr. Aref from practising as a lawyer, pending disciplinary proceedings, a decision he appealed against before the Court of Appeals. Furthermore, the lawyer appointed by the Bar Association Council as administrator of Mr. Aref's lawyers' firm informed the judicial observation mission that all the courts of Djibouti refused to allow him to act in that capacity for new cases, although no instruments in force in Djibouti authorize a court to refuse the appearance of a lawyer represented by the administrator of his lawyers' firm, duly appointed by the Bar Association Council (which would be liable to lead to the disappearance of the lawyers' firm).

The FNUJA report concludes that the criminal and disciplinary procedures brought against Mr. Aref were conducted in a manner contrary to the presumption of innocence and the respect of the rights of the defendant, with a view to stopping Mr. Afef from exercising his capacities as a defence lawyer.

Social elections

The workers' representatives told the mission that they would like enterprises to be able to hold social elections in the near future, in addition to trade union elections in order to be in a position to participate fully in consultations and social dialogue as a social partner of equal merit. It was hoped that enterprises would thus be able to appoint a workers' representative to the labour court and workers' representatives to the boards of directors of public and para-public enterprises and to the labour advisory committee. Their firm wish to be consulted during the revision of the Labour Code currently under way was reiterated.

The employers' representatives met by the mission stated that the Ministry of Labour and Vocational Training had consulted them in connection with the revision of the Labour Code currently under way, notably on the matter of title III on the employment contract, as well as on the other anticipated amendments to the code. It was hoped that the workers' representatives will once again be able to sit on the boards of directors, but in their view, the officials of the UDT/UGTD were not currently representative of the body of workers, thus they were also favourable to the holding of social elections.

Meetings between the Ministry of Labour and
the senior trade union representatives of the
UDT/UGTD at the Ministry of Labour

The mission was granted permission to participate in a high-level meeting under the chairmanship of the Ministry of Labour with five trade union officials from the Inter-Trade Union Coordination Group UDT/UGTD. During this meeting, the workers' representatives stated their intention to renew dialogue with the authorities in order to be full participants in social dialogue within the country. The Minister of Labour agreed to arrange for the return of the keys of the trade union premises to the Inter-Trade Union Coordination Group, which had been closed since 7 May 1996 following police intervention. The spokesman of the UGT/UGTD Coordination Group subsequently declared in writing that he had received the keys to the trade union premises on 15 January 1998. As to the crucial issue of the claims of the trade union officials, namely the reinstatement in their posts and the return to duties of the members of the senior management of both federations and also of the primary and secondary schoolteachers' trade unions, the Minister explained that an initial timetable would be worked out to discuss these issues. He convened a meeting with the trade union officials concerned to be held after Aïd El Fitr, three days after Ramadan, explaining that he had just taken up his duties and that he needed some time to consult other government members on these important issues. The workers' representatives accepted this deferral in the hope that the trade union officials who had been dismissed or disqualified would be reinstated to their posts and duties and that legal, full and absolute recognition would be given to the Inter-Trade Union Coordination Group UDT/UGTD, the SYNESED and the SEP.

Written communication from the Government

The government authorities of the Ministry of Labour and Vocational Training assured the mission that a written communication in reply to the two pending cases would shortly be sent to the Committee on Freedom of Association.

Results obtained, assurances given by
the authorities and future prospects

In spite of a general climate still in many ways repressive, the mission found that some points had already been clarified before its arrival, in particular with respect to detentions and some judicial proceedings. There remained, however, a significant absence of dialogue between the governmental and administrative authorities and the trade union organizations. As a consequence, the serious problems relating to the dismissals of trade union officials and the disqualifications of teachers, as well as to the closure of the trade union premises and the loss of trade union materials, had remained unsolved for a considerable length of time.

In this regard, the direct contacts mission can be judged to have been a positive initiative, and seems already to have brought to fruition in recent dialogue between the Minister of Labour and the representatives of the trade union organizations. Furthermore, the agreement they have reached will be respected and implemented.

Results obtained and assurances given by the authorities

An agreement with limited content, but a broad scope, was in fact concluded following the joint meeting suggested by the mission. The idea of the meeting was immediately accepted by the Minister of Labour, who in turn proposed it to the trade union organizations.

The meeting, which was held in the office of the Minister of Labour, bringing together the Minister, his immediate colleagues and the representatives of the trade union organizations, in the presence of the mission, certainly constituted the mission's greatest achievement. It was a demonstration of the parties' will to engage in dialogue and to explain and understand the various positions and points of view.

The representative of the Director-General welcomed the convening of a meeting of this kind, one likely to do much to dispel misunderstandings and intransigence. All the more so because the problems to be solved are not related to the particular instruments and regulations in force, which are in conformity with the principles of freedom of association, but rather concern the practical application of these instruments. In the current climate of political and economic change affecting the Republic of Djibouti, it is now possible that the principle of freedom of association will be respected and that a normal trade union life can be resumed, not only through the reinstatement of dismissed or disqualified trade unionists, but through the organization of elections of workers' representatives in enterprises, in legal conditions which require the possibility of trade union participation. To pave the way for the resumption of normal trade union life, it would be helpful to participate in a tripartite training session in which the ILO could be involved.

The trade union representatives saw this meeting as a positive step which would dispell their reputation as subversive organizations, and redefine them as social partners exercising their rights and fulfilling their duties in furtherance of the economic and social development of the country. The trade union representatives requested that the trade union officials who were dismissed on the pretext of having abandoned their posts, just some days after having exercised their constitutionally recognized right to strike be reinstated in their posts and duties, and that this be made a priority of the Government. The dismissals had occurred in spite of the fact that their behaviour was in conformity with the law and with their role as trade union officials, and in spite of the fact that the Finance Act (relating to the structural adjustment plan) -- the reason for the dispute -- was withdrawn three months later as unconstitutional. They also requested the legal recognition of the existing trade union organizations and their leaders, and hoped to see social elections within the enterprises and the establishment of a committee for social dialogue for the implementation of the structural adjustment plan. It was indicated that the trade union movement needed training and restructuring, and that a simple and fast solution should be found as regards the problem of premises.

The Minister of Labour stated that he would make inquiries into the circumstances in which the dismissals occurred; he believed that the reasons were other than of a trade union nature and were unrelated to strike action. Rather he suggested that repeated absences from work were the cause of the dismissals. The Minister indicated that he did not have all the information relating to the issue, given that he was new to the Ministry and that the events occurred two and a half years ago. He requested the trade unionists to allow him sufficient time and to provide him with the tools to enable him to review this problem without prejudice, to try to reduce the biases on both sides and dispel any impression that the trade unionists wanted to play a political role. The Minister believed that a union culture was lacking, as was an understanding of the role of unions. He stated that unprejudiced dialogue should permit matters to advance, and that he intended to apply himself to achieving it, the unions in turn having to take into consideration the changes that have occurred and are still occurring in Djibouti in terms of the multi-party system and trade union pluralism.

The Minister thus proposed an initial timetable of meetings to the representatives of the trade union organizations for the purpose of examining the problems. The first meeting was scheduled for the third day after the end of Ramadan.

As regards the trade union premises, closed by the police on 7 May 1996, the Minister instructed the director of labour to return the keys to the spokesman of the Inter-Trade Union Association UDT/UGTD. This was done the very same day (15 January 1998).

Lastly, as regards the dismissed or disqualified teachers, the Minister of Labour was to make contact with the competent government authorities, and in particular with the Minister of National Education, who had already arranged for some of them to be reinstated.

Future prospects

I. Having collected the information provided by the Government and by the trade union organizations with which it met, and having participated in the meeting held at the Ministry of Labour, on its proposal, between the Minister of Labour and the representatives of the trade union organizations, the mission observed that the situation had improved to a certain extent in many regards, and in particular as regards the following:

II. On the other hand, while aware of both the economic and employment difficulties the country is undergoing, and while taking into account the recent political changes that have taken place, the mission must emphasize the severity of the problems that still remain and whose solution lies in the re-establishment of a normal trade union climate in accordance with the principles guaranteed in ILO Convention No. 87. It therefore invited the Government as a whole, and the Minister of Labour in particular, to take, in agreement with the trade union organizations, the necessary action to respond to the following requests:

(1) It asked the Minister of Labour to complete the timetable for meetings, the beginning of which was decided upon at the end of the meeting held at the Ministry of Labour with the trade union organizations, in order to jointly examine the situation of the UGTD and UDT officials dismissed following the strikes and to take the necessary measures and to use all the legal means available to end or cancel the dismissals and to reinstate the officials as quickly as possible in their posts and duties, in conditions (timetable and conditions of return, etc.) negotiated with them.

(2) With respect to the disqualifications of teachers with tenure following the strikes, and while noting with interest that some contractual teachers were taken back following a decision by the Minister of National Education, it requested that consultations between the Ministers of Labour, National Education and the Public Service should have the objective of ending these disqualifications and reinstating the teachers concerned in their posts and duties in conditions (timetable and conditions of return) negotiated with them.

(3) As regards the judicial authorities, the mission considers it necessary that the greatest possible care be taken to promote and defend freedom of association, and that the necessary steps be taken for investigations to be conducted into the complaints lodged by the trade union organizations and trade unionists as well as those lodged by Mr. Aref, in which no action has yet been taken, and for the personal and professional situation of Mr. Aref to be examined entirely dispassionately and independently.

(4) As regards those in dialogue with the trade union organizations, the mission requested that everything be done to ensure that normal trade union life and activities can continue or resume at all levels and in all sectors of industrial activity, in respect of the principles of freedom of association and trade union pluralism. It made the same recommendations to the trade union organizations whose representatives it had met with.

(5) Lastly, the mission recorded the request, made by the government authorities and the trade union organizations it had met with, relating to the need for training, and therefore recommends that a tripartite seminar be organized shortly in Djibouti, with ILO assistance, on international standards relating to freedom of association in particular, and to international labour standards in general. It hopes that the ILO will be able to respond favourably to this request, which it supports without reservation, as soon as the trade union situation is back to normal.

It also recalled the ongoing availability of the ILO to assist the Government in its current revision of the Labour Code.

Paris, 30 January 1998.

List of persons encountered during the mission

Government authorities

Ministry of Labour and Vocational Training
Mr. Mohamed Ali Mohamed, Minister of Labour and Vocational Training
Mr. Iwad Hassan, secretary-general
Mr. Gérard Karche, technical adviser
Mr. Abdi Ilmi Achkir, director of labour
Mr. Guedi Absiye Houssein, inspector of labour and social laws
Mr. Arbahim Ali, director of the agency for social protection
Mrs. Osman Fatouma, chief of the legal service

Ministry of Justice
Mr. Abdi Ismael Hersi, director-general of judicial affairs

Ministry of National Education
Mr. Areitha, technical adviser
Mr. Fathi Chamsam, departmental head responsible for secondary education

Ministry of the Public Service
Mr. Yacin Ahmed Liban, director

Presidency of the Republic
Mr. Amin A. Robleh, secretary-general of the Government

Workers' representatives

The Inter-Trade Union Coordination Group
of the Djibouti Labour Union/the General
Union of Djibouti Workers (UGTD/UDT)

Secondary Schoolteachers' Trade Union (SYNESED)

Primary Schoolteachers' Trade Union (SEP)

Employers' representatives
Mr. Saïd Omar Moussa, president of the Inter-Enterprise Trade Union Association (USIE)
Mr. Jean-Philippe Delarue, USIE

United Nations Development Programme (UNDP)
Mr. Teoufik Ben Amara, resident representative

Others
Mr. Ali Dini, lawyer, President of the Bar of Djibouti

Case No. 1876

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

Complaint against the Government of Guatemala
presented by
-- the International Confederation of
Free Trade Unions (ICFTU) and
-- the International Union of Food, Agricultural,
Hotel, Restaurant, Catering, Tobacco and
Allied Workers Associations (IUF)

Allegations: Threats and acts of anti-union discrimination

252. The Committee has examined this case and formulated interim conclusions on a number of occasions, most recently at its November 1997 meeting [see 308th Report, paras. 363-394, approved by the Governing Body at its 270th Session (November 1997)].

253. The Government sent new observations in a communication dated 28 January 1998.

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

A. Previous examination of the case

255. The last time the Committee examined the case (November 1997) various allegations remained pending relating to threats and acts of violence against trade unionists, and also to acts of anti-union discrimination. The Committee formulated the following conclusions and recommendations in this connection [see 308th Report, paras. 390-394]:

B. The Government's reply

256. In a communication dated 28 January 1998, the Government sent documents signed by the trade union leaders Débora Guzmán and Félix Hernández addressed to the government procurator's office asking for the inquiries relating to them to be closed as there is no interest in pursuing them. The Government indicated that judicial inquiries into the rape of the trade unionist Vilma Cristina González were under way. Furthermore, it declared that during a meeting between an official from the Ministry of Labour and the Secretary-General of the IUF in Guatemala, the latter had stated that he had no knowledge of the alleged surveillance of the IUF's premises by persons unknown in August 1993. The Government added that no denunciation in this respect has been made to the government procurator's office. It also declared that it was awaiting the visit of an ILO regional technical committee in connection with this case, in which it deplored the fact that the complainants and the aggrieved parties themselves have collaborated so little, not even submitting denunciations. As regards the allegations concerning the dismissal of trade union officials from the Workers' Union of the San Juan de Dios Hospital, the Government stated that the trade unionist Gunder Isaías Yoc Orozco had not been dismissed (proof of this was annexed), and that the trade union official Carmelino Isauro Lucas Díaz had been reinstated in his post.

257. In respect of the decision taken by the Quetzal port enterprise to dismiss Juan José Morales Moscoso and Everildo Revolorio Torres, the Government stated that the dispute was currently before the courts and that it will inform the Committee of the definitive decision. The documents sent by the Government show that Mr. Morales Moscoso was a union officer and legal authorization is required for his dismissal; Mr. Revolorio was not an officer and was dismissed as a result of mistakes made in his work.

C. The Committee's conclusions

258. With regard to the alleged death threats or assaults against trade unionists, the Committee notes that the trade unionists Débora Guzmán and Félix Hernández have requested that the inquiries concerning them be closed and that the trade unionists Jorge Galindo, Danilo Aguilar, Juan Francisco Alfaro and Víctor Durán have still not submitted denunciations relating to the death threats alleged by the complainant. In this respect, the Committee will only continue with the examination of these allegations if the complainant sends supplementary information. The Committee also notes that the judicial inquiries are progressing as regards the rape of the trade unionist Vilma Cristina González and it asks the Government to keep it informed of developments in these inquiries. The Committee also requests the Government to keep it informed of developments in the inquiries into the detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez Garcia and Belarmino González de León, as the Government has not sent it any further information on these matters.

259. With respect to the allegations of anti-union discrimination, the Committee notes that, according to the Government, the trade unionist Gunder Isaías Yoc Orozco was not dismissed and that the trade union official Isauro Lucas Díaz (both members of the Workers' Union of the San Juan de Dios Hospital) was reinstated in his post. Furthermore, given the Government's lack of new information concerning other allegations, the Committee repeats its earlier conclusions, in which it took note of the Government's statements regarding developments in the legal, administrative and mediation procedures in connection with the International Textile Corporation enterprise, the El Salto farm, the Mariposa S.A. bottling enterprise and the Las Delicias farm, in which it stressed the importance of remedying all acts of anti-union discrimination and asked the Government to keep it informed of the progress of these procedures. The Committee requests the Government to take measures for the reinstatement of those dismissed in their posts if it is confirmed that they were dismissed for their trade union activities.

260. Lastly, with respect to the decision of the Quetzal port enterprise to dismiss the trade union officials Juan José Morales Moscoso and Everildo Revolorio Torres, the Committee notes that, according to the Government, Everildo Revolorio Torres is not a trade union official and was dismissed as a result of mistakes made in his work (the Government does not specify the nature of these errors or the reason for the dismissal of Mr. Morales Moscoso). The Committee also notes that both dismissals have been referred to the courts. On a general note, the Committee recalls that nobody should be subject to discrimination in employment on the basis of legitimate trade union membership, duties or activities, and requests the Government to keep it informed of the results of the legal proceedings currently under way relating to the dismissal of the above trade unionists. The Committee requests the Government to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activity.

The Committee's recommendations

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

(a) The Committee draws the attention of the complainants to the fact that it will pursue its examination of the allegations relating to unionists Débora Guzmán, Félix Hernández, Jorge Galindo, Danilo Aguilar, Juan Francisco Alfaro and Víctor Durán only if they send complete information relative to these allegations.

(b) The Committee requests the Government to keep it informed of developments in the inquiries into the rape of trade unionist Vilma Cristina González and into the detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarmino González de León.

(c) As regards the allegations relating to acts of discrimination (International Textile Corporation enterprise, El Salto farm, Mariposa S.A. bottling enterprise and Las Delicias farm) the Committee once again stresses the importance of remedying all acts of anti-union discrimination and asks the Government to keep it informed of the progress of these procedures. The Committee requests the Government to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activities.

(d) The Committee requests the Government to keep it informed of the results of the legal proceedings currently under way relating to the dismissal of trade unionists Juan José Morales Moscoso and Everildo Revolorio Torres and to take measures for the reinstatement of those dismissed in their posts if it is confirmed that they were dismissed for their trade union activities.

 

Case No. 1936

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

Complaint against the Government of Guatemala
presented by
the Trade Union of Workers of the National
Electrification Institute (STINDE)

Allegations: Acts of anti-union discrimination in the
collective bargaining process

262. The complaint is contained in communications from the Trade Union of Workers of the National Electrification Institute dated 30 May and August 1997.

263. The Government sent its observations in a communication dated 28 January 1998.

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

A. The complainant's allegations

265. In its communications dated 30 May and August 1997, the Trade Union of Workers of the National Electrification Institute (STINDE) alleges that following its and the Institute's denunciation of their collective agreement in April 1997, and before a new collective agreement had been negotiated, the manager of the Institute closed the joint committee (where labour disputes are examined) and refused time off for trade union activities to the leaders of the union's 23 affiliates and to the members who were to participate in two general assemblies. The STINDE indicates, however, that in accordance with the Labour Code, as long as a new collective agreement has not been negotiated the rights assigned in the previous agreement remain intact.

266. Similarly, the STINDE alleges that the Institute's management began dismissal procedures against the trade union officials Luis Chinchilla, Walter Clara, Arturo López Cárdenas and Carlos Sierra. In addition, the Institute has lodged a complaint against eight STINDE officials accusing them of environmental contamination, contempt and threats. Furthermore, the trade union submitted a complaint against the Institute's manager for environmental damage and drug-related activities.

B. The Government's reply

267. In its communication dated 28 January 1998, the Government confirms that there had been a problem relating to the application of the collective agreement on working conditions, which caused strains in relations between the workers and the authorities of the National Electrification Institute (INDE). Once the Ministry of Labour became aware of the problem, it intervened in an attempt to reconcile the parties, with ongoing communication being maintained between the Minister of Energy and Mining and representatives of the INDE and the STINDE.

268. The Government adds that the efforts and the goodwill of the parties resulted in a satisfactory conclusion to the discussion and negotiations of the new collective agreement on working conditions. Thus the situation denounced has been satisfactorily resolved.

269. The Government adds a copy of an official letter from the general manager of the INDE (who took up his duties in November 1997, following the presentation of the complaint) which, after confirming the negotiation of the new collective agreement, makes reference to the legal action taken by the Institute and the trade union, as follows:

C. The Committee's conclusions

270. The Committee observes that in this case the complainant has alleged that following the denunciation of the collective agreement between the complainant and the National Electrification Institute, the latter: (1) in violation of the provisions of the previous collective agreement, which were still valid, refused to issue trade union permits to union leaders and members and closed the joint committee (where labour disputes were examined); (2) began dismissal procedures against four trade union leaders and lodged a complaint against eight trade union leaders for environmental contamination, contempt and threats.

271. The Committee notes that according to the Government the collective dispute was concluded with the negotiation of the new collective agreement, thus satisfactorily resolving the denounced situation. The Committee understands that the points that were settled relate to the trade union permits and the reopening of the joint committee. The Committee observes, however, that as far as the legal action relating to the dismissal of four trade union leaders and to the committing of penal offences (submitted by both the Institute and the trade union) is concerned, while the information provided by the Government reflects the will of the parties to seek ways of improving the framework of application of the new collective agreement (with reference to the industrial procedures relating to dismissals) and to their readiness and willingness for the criminal proceedings to be entirely withdrawn, it does not show conclusively that these issues have been resolved. The Committee therefore requests the Government -- in view of the current favourable industrial relations climate -- to confirm that all legal procedures and criminal proceedings have been withdrawn.

The Committee's recommendation

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

The Committee requests the Government -- in view of the current favourable industrial relations climate -- to confirm that all legal procedures and criminal proceedings concerning the complainant and the National Electrification Institute have been withdrawn.

 

Case No. 1940

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

Complaint against the Government of Mauritius
presented by
the Mauritius Labour Congress (MLC)

Allegations: Prosecution of trade union leaders and physical violence
against trade unionists during a march of protest

273. The complaint in this case appears in a communication from the Mauritius Labour Congress (MLC) of 7 October 1997.

274. The Government sent its observations in a communication dated 29 January 1998.

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

A. The complainant's allegations

276. In its communication of 7 October 1997, the Mauritius Labour Congress (MLC) denounced the decision of the Mauritius Police Authorities to go ahead with prosecution against 11 trade union leaders following advice received from the State Law Office. These actions were allegedly taken in response to the protest march organized on 26 June 1996 in Port Louis by the trade union movement.

277. The complainant alleges that the trade union movement had written to the Commissioner of Police on 12 June 1996 to authorize a peaceful march on 26 June 1996. According to the complainant, the Commissioner had to respect a time frame of 48 hours in connection with his reply in conformity with the Public Gathering Act (PGA) but his reply came only some 12 hours before the scheduled time of the march. Following the refusal to hold the march received in a letter of 25 June 1996, the trade unions in the country decided not to go ahead with the protest march but on the following day the union representatives had to call at Champ de Mars in Port Louis as they could not inform their members about the fact that the march had been prohibited. According to the MLC, on 26 June 1996, some 2,000 people gathered at Champ de Mars and there they were informed by trade union leaders about the decision of the Commissioner of Police to prohibit the march. The MLC alleges that while people were on their way back and while trade unionists wanted to hand over a letter to the Prime Minister, police had formed a ring in the city centre preventing union leaders and people from moving and even brutalized some trade unionists with batons.

278. The MLC then claims that 14 months after these incidents, the police came to the MLC office to inform its General Secretary that he as well as ten other trade union leaders would be prosecuted with regard to the events of 26 June 1996 and to seize their passports. According to the MLC, following the visit of the police to the MLC office, the Government promised an inquiry into the matter but to this date, nothing has been heard about the inquiry and its mandate.

B. The Government's reply

279. In its communication of 29 January 1998, the Government refutes most of the allegations made by the MLC concerning the events of 26 June 1996 as well as the events that followed. The Government states firstly that while it confirms that an application was sent by the All Workers Conference to the Commissioner of Police on 12 June 1996, his reply was dated 24 June 1996 and the letter was dispatched by a police rider and handed over to an official of the All Workers Conference on 25 June 1996. In any case, the Government claims that the All Workers Conference was not entitled, in accordance with section 3(2) of the Public Gathering Act 1991, to advertise the holding of the meeting without prior authorization of the Commissioner of Police.

280. The Government claims that although the trade union leaders were warned on the spot that the gathering was unlawful, the union leaders addressed the crowd that had gathered at the Champ de Mars. The Government then states that the crowd proceeded to the National Assembly with a view to handing over a letter to the Prime Minister. While the union leaders were able to leave the letter at the police post at the gate, the Special Supporting Unit of the police and police officers lined the street near the Supreme Court to prevent the whole crowd from proceeding to Government House without using any force. Furthermore, the Government states that according to section 8(i) of the Public Gathering Act 1991, no public gathering is authorized in Port Louis on any day on which the National Assembly meets and sits, which was in fact the case on that day.

281. The Government goes on by declaring that following "the illegal protest march", which was organized on 26 June 1996 contrary to the provisions of the Public Gathering Act 1991, police investigated the matter and the inquiry was subsequently submitted to the Director of Public Prosecutions for necessary action. On 31 July 1997, the Director of Public Prosecutions advised prosecution against 11 trade union leaders for "holding a public meeting in the district of Port Louis on a day the National Assembly held its session in breach of sections 8(1), 8(4) and 18 of the Public Gathering Act 1991". The Government states that in the light of the decision of the Director of Public Prosecutions, the General Secretary of the MLC was contacted by the police and informed that in accordance with the provisions of regulation 14 of the Passport Regulations 1969, he and his colleagues would have to surrender their passports. However, the Government alleges that subsequently they were neither prevented from leaving the country nor were their passports secured.

282. Finally, the Government states that an inquiry into the matter was carried out and it revealed that the police had acted in accordance with regulation 14 of the Passport Regulations 1969 although in this case the Secretary-General of the MLC was only verbally informed that his passport could be seized but at no time was it actually seized.

The Committee's conclusions

283. The Committee notes that in this case the MLC denounces the prosecution of 11 trade union leaders following a march of protest on 26 June 1996 organized by the All Workers Conference. The Committee also takes account of the allegations of the use of force to brutalize trade unionists during the same march of protest.

284. The Committee notes firstly that the Government refutes most of the allegations submitted by the MLC concerning the time frame of 48 hours which had to be respected to authorize or prohibit the march of 26 June 1996 as well as the events which occurred on that day. While the MLC claims that the refusal to hold the march was only received some 12 hours before the planned date of the march of 26 June 1996, the Government claims that his reply was dated 24 June 1996. However, the Government admits that the said reply was only dispatched on 25 June 1996. In this regard, the Committee can only deplore the fact that, while the request for the march was made on 12 June 1996, the Commissioner of Police took nearly two weeks to send his reply although he must have known before that he was going to prohibit the holding of the march since the Government claims that the justification for the refusal was the fact that the National Assembly would be sitting on that day. In these circumstances, the Committee recognizes that it was clearly impossible for the MLC to call off the march at such short notice. The Committee recalls that trade union rights include the right to organize public demonstrations. Although the prohibition of demonstrations on the public highway in the busiest part of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 136].

285. As for the events of 26 June 1996, the Committee can only note that the information supplied by both sides on the sequence of events -- from the meeting, to the handing of the letter to the Prime Minister, to the use of violence against the trade unionists -- is substantially contradictory.

286. Concerning the allegations of the use of violence against trade unionists during the march, the Committee strongly reaffirms that the authorities should resort to the use of force only in situations when law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and the Government should take measures to ensure that the competent authorities receive adequate instructions so as to avoid excessive violence when controlling demonstrations which might result in a disturbance of the peace.

287. Concerning the allegations regarding the questioning by the police and the subsequent prosecution of 11 trade union leaders which followed the events of 26 June 1996, the Committee strongly emphasizes the fact that measures depriving trade unionists of their freedom on grounds related to their trade union activity, constitute an obstacle to the exercise of trade union rights. Furthermore, concerning the allegation that the trade unionists were informed of the opening of legal proceedings only 14 months after the events of 26 June 1996, the Committee recalls the importance it attaches to such legal proceedings being concluded expeditiously. In this regard, the Committee requests the Government to keep it informed of whether the prosecutions have been in fact carried out, and if that is the case to do everything in its power to ensure that the charges brought against the 11 union leaders are withdrawn immediately.

The Committee's recommendations

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

(a) The Committee requests the Government to ensure, in the future, that the competent authorities strive to reach agreement with the organizers of trade union demonstrations to enable such demonstrations to be held in places where there would be no fear of disturbances.

(b) Regarding the allegations of the use of violence against trade unionists during the protest march of 26 June 1996, the Committee requests the Government to take, in the future, measures to ensure that the competent authorities receive adequate instructions so as to avoid excessive violence when controlling demonstrations which might result in a disturbance of the peace.

(c) As regards the allegations on the questioning by the police and subsequent prosecution of 11 trade union leaders following the events of 26 June 1996, the Committee requests the Government to keep it informed of whether the prosecutions have been in fact carried out, and if that is the case to do everything in its power to ensure that the charges brought against these union leaders are withdrawn immediately.

 

Case No. 1913

Definitive Report

Complaint against the Government of Panama
presented by
the Latin American Central of Workers (CLAT)

Allegations: Dismissals due to a strike in the air traffic sector

289. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 4 December 1996. The Government sent its observations in communications dated 12 and 25 March and 27 May 1997.

290. In its meeting of May-June 1997, the Committee decided to request additional information from the complainant organization and the Government so that it could give its opinion on the allegations in full possession of the facts. The Government sent additi*onal information in its communication of 7 October 1997 but no information was received from the complainant organization.

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

A. The complainant's allegations

292. In its communication dated 4 December 1996, the Latin American Central of Workers (CLAT) alleges that, since 1984, Panamanian air traffic controllers have been demanding the promulgation of an Act for the full regulation of the working conditions of air traffic controllers (salary scale, retirement, duties, etc.). The Panamanian Association of Air Traffic Controllers (APACTA) itself submitted a Bill to the Communication and Transport Committee of the Legislative Assembly. However, this did not yield any definite results. After a number of years, the current Panamanian Government decided to take up this issue and set up the Committee to analyse the Bill submitted by the Panamanian air traffic controllers. Having studied the Bill, this tripartite Committee submitted its report together with the revised Bill to the Ministry of the Interior and Justice, which in turn put the new regulation before the Cabinet Council on 8 August 1996. During all stages of the processing of this initiative no government body expressed any objections to the Bill. The Act was however not promulgated, and the problems faced by the controllers continue.

293. CLAT adds that in view of this situation the air traffic controllers in APACTA declared a strike on 14 November 1996. They demanded the following: (1) the Government to pass the above-mentioned Bill; (2) fair treatment and minimum guarantees in keeping with their duties and responsibilities; (3) better working conditions to enable them to provide a safe and efficient air traffic control service (in particular, improvements to combat the stress arising from working in a high responsibility position, extended periods of time spent sitting down, working in a confined space, shortcomings in the workplace and the symptoms of pharyngitis experienced by a number of workers due to their having to speak constantly for long periods of time); (4) the Government to approve the salary scale as outlined in Chapter 3 of the Bill (deadline of 1 January 1997); in this connection, CLAT points out that it is the Panamanian air traffic controllers who earn the least of all workers in this sector in the whole of Latin America, in spite of the intensive pace of their work which involves both considerable responsibility and stress; their salary varies between US$650 and US$810; and (5) the introduction of special retirement clauses for air traffic controllers, as at present no special provisions exist allowing Panamanian air traffic controllers to retire at an age where their physical and mental capacities are still fully intact, or at least at one where there is no danger to the safety and efficiency of the duties they perform; Panamanian air traffic controllers, in their capacity as public officials, must at present conform with the retirement age stipulated in the general regulations of the Social Security Fund (60 years of age for women and 65 for men).

294. CLAT adds that on 20 November 1996, the day following the announcement of their partial suspension of activities, which was undertaken in order to obtain the appropriate legal regulation of air traffic, the air traffic controllers were dismissed from their duties and replaced by 94 foreign air traffic controllers, who obviously had little knowledge of the specific details of Panamanian air traffic control, particularly as far as climatic and geographic conditions are concerned. This situation constitutes a danger to national air traffic safety. According to CLAT, an investigation into developments in the air traffic controllers' dispute since 1984 shows the consistent readiness of these workers to negotiate fairer working conditions more in line with their duties and their level of specialization. The air traffic controllers' struggle is not just a struggle to defend industrial interests but must be taken in the wider context of demands for the safety of the passengers travelling through Panama. In addition, the ILO itself, in a report prepared in 1987, recognizes the existence of serious shortcomings in the employment conditions of Panamanian air traffic controllers. For these reasons, CLAT concludes that the demands made by these workers are entirely legitimate and the Panamanian Government's delay in legislating on the rules governing these workers as well as the dismissal of 94 of them constitute serious actions which directly infringe upon freedom of association.

B. The Government's reply

295. In communications dated 12 and 25 March and 27 May 1997, the Government states that the Civil Aeronautics Directorate (DAC) has its own legal rules, its own capital resources and full autonomy in its administration, and that it is subject to national constitutional and legal provisions. In keeping with prevailing legal provisions, the highest authority in the Civil Aeronautics Directorate is the board of directors which is made up of the Minister of the Interior and Justice, who chairs it, the Minister of Finance and Treasury, the Minister of Commerce and Industry, the Comptroller General of the Republic and the Director-General of the Civil Aeronautics Directorate. Its geographic position makes Panama a major international centre for air traffic control, radar signal control, control towers, information services using a variety of radio frequencies as well as domestic operations. Following a decision by the national authorities and in compliance with the international regulations contained in the treaties signed by Panama, air traffic control is deemed an essential service, meaning that in prevailing penal legislation (Penal Code) obstructing the control of air traffic is defined, classified and punished as an offence. Within the framework of the legal powers regulating its operation, on 6 July 1981 the board of directors of the Civil Aeronautics Directorate approved the internal staff rules establishing the rights, duties, prohibitions and disciplinary measures applicable to the administrative and technical personnel in all sections of the institution and establishing the guidelines for the procedure relative to various types of staff action, which was set to come into force on 1 September 1981.

296. Referring specifically to the allegations, the Government explains that from 1984 onwards, Panamanian public officials working as air traffic controllers expressed their desire, in their capacity as public officials, for legislation to establish special working conditions for them including an automatic salary scale, special retirement provisions and the regulation of their responsibilities. In October 1993, Mr. Claudio Dutary, a member of the body of air traffic controllers in the service of the Civil Aeronautics Directorate, who at that time was the chairman of an organization called the Air Traffic Controllers' Commission, on his own initiative, submitted a Bill comprised of 40 sections and an explanatory preamble for the consideration of the Communication and Transport Committee of the Legislative Assembly. This Bill was not favourably received by the legislative body, and was therefore not passed. It should be pointed out that as an independent state body the Legislative Assembly has full authority under the Constitution to decide either for or against Bills submitted for its consideration. The two other state bodies are the Government and the judiciary.

297. The Government adds that one year after having taken up office as President of the Republic, Dr. Ernesto Pérez Balladares, the current Panamanian President and Head of Government, in response to a request submitted by the Panamanian Association of Air Traffic Controllers (APACTA) -- a civil association comprised of the above-mentioned public officials -- in October 1995 instructed the Ministry of the Interior and Justice and the Civil Aeronautics Directorate to set up a tripartite committee to examine a proposal for the preparation of a draft Bill to govern the employment of such officials. The air traffic controllers were represented in this committee through their association, APACTA, a civil association which was founded with the aim of improving air traffic. This tripartite committee held eight meetings over a period of several months (April-June 1996) during which matters pertaining to the technical board, the duties, requirements, suitability and civil responsibility of air traffic controllers, and their administrative and penal responsibility were revised, discussed and approved. It also examined other aspects of a more general nature in this sphere, as well as regulations relating to salary scales, retirement provisions, licence cancellations and other issues; written reports were made of each meeting. The subjects of salary scales and special retirement provisions, to which they aspired as public officials, remained pending for further consultation. At the meetings, notes were exchanged, opinions heard and observations made on the draft Bill to be submitted to the Legislative Assembly, and conversations were held among representatives of APACTA, the Civil Aeronautics Directorate, the Ministry of the Interior and Justice, the Comptroller General of the Republic and the Ministry of Planning and Economic Policy. Nevertheless, despite the exchanges taking place among the principal actors involved and the express desire of the President of the Republic, Dr. Ernesto Pérez Balladares, to find a final solution to the request to finalize the draft Bill on air traffic controllers, on 14 November 1996, with no valid reason or justified cause, the air traffic controllers announced their intention, in their capacity as a group of public servants, to suspend their work.

298. The Government states that following the communiqué issued by APACTA, the Civil Aeronautics Directorate convened a meeting on 18 November 1996, which was the day on which it found out about APACTA's decision, and it was at that meeting that the representative of the Ministry of Planning and Economic Policy informed them of the need to modify the draft Bill, promising a reply within a week. On the afternoon of 18 November the air traffic controllers presented an ultimatum which was subsequently carried out, the grounds given being the fact that the draft Bill had not been passed by the Government. The complete suspension of the air traffic control service meant that all air links with the country were cut, entailing massive financial losses for both the State and private individuals estimated in terms of millions per day for the sectors concerned. It should be pointed out that the Ministry of Labour had no involvement in the air traffic controllers abandoning their duties as that ministry only has authority in labour matters and the provisions of the prevailing Labour Code are not generally applied to the public services. APACTA is an association of public officials (APACTA's by-laws and regulations correspond to the provisions of the Civil Code); it is seeking to have a Bill passed which, if it became a law of the Republic, would institute the principles and standards aspired to by its members.

299. The Government explains that the serious offence committed by the air traffic controllers (only 22 out of 94 air traffic controllers came to work) in the only national institution to provide essential services and facilities for the safety of civil aviation at the domestic and international levels, caused the Director-General of the Civil Aeronautics Directorate, in application of the powers vested in him by the institution's organizational law, and the internal staff regulations of the Civil Aeronautics Directorate in force since 1981, to dismiss from their posts the 72 officials who promoted, encouraged, supported and participated in the ill-timed and injurious massive abandonment of their duties; subsequently paying them the employment benefits they were owed. In accordance with section 65 of the Constitution the State can apply special restrictions to strikes in the public services, and the Labour Code also requires that the provision of such services be guaranteed in the event of legally declared strikes. The air traffic controllers' abandonment of their duties on 19 November 1996 endangered the safety of aircraft and the lives of their passengers, as well as of the general population, and also involved huge financial losses. The strike meant that the Civil Aeronautics Directorate could not offer its usual services in the areas of air communication, radar, radio and air traffic control for the domestic and international airlines that use them daily with the required levels of safety, efficiency, quality and speed. Furthermore, Panamanian legislation governing public servants stipulates (section 152 (clauses 6, 13 and 14 of Act No. 9 of 1994) which applies to all state servants in accordance with section 135 of the Act), that the following constitute grounds for the "immediate dismissal" of a public servant: unjustifiably to alter, delay or refuse ... the provision of the service he usually performs, in keeping with the responsibilities of his position; "not to be present at or not to remain at the workplace providing the service until the arrival of his replacement; to carry out or participate in strikes that are prohibited or declared illegal, or to fail to observe the requirement for essential services during legal strikes". Moreover, the prevailing Penal Code stipulates in sections 238, 241 and 341 that the following constitute offences punishable by imprisonment: "any act which endangers the safety of air transport" and any act which impedes or interferes with the usual operation of public services which is carried out while the official is still legally bound to perform such services. The air traffic controllers' actions were extremely detrimental to the airlines, the users and the national economy and the abandonment of their duties was entirely contrary to prevailing legislation. The Attorney-General's office is carrying out the appropriate investigation into the alleged commission of these offences (acts against means of transport and communication, conspiracy to commit an offence and abuse of authority and infringement of public servants) on the part of the air traffic controllers.

300. The Government recalls also that the Committee on Freedom of Association has, in similar cases, declared that strikes may be restricted or prohibited in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and more specifically has considered air traffic control to be an essential service. The Government concludes by pointing out that Panama has honoured and continues to honour its commitments vis-à-vis the Conventions it has ratified, including Conventions Nos. 87 and 98, and that in addition it is a signatory of the Convention on International Civil Aviation, adopted by way of Act No. 52 of 30 November 1959, which imposes on the contracting States a high degree of responsibility with respect to air traffic safety, and it was this that was put under threat by the actions of the air traffic controllers.

301. The Government also refers to acts which it qualifies as serious that took place in the radar control centre in Balboa on the day of the strike and which are attributable to the strikers. Specifically, they removed all instructions and information material (documents, forms, telephone books, etc.) and changed the passwords for the radar system which meant that this could not be used during the 24 hours following this act, endangering human lives and goods. Because of this it was not possible to carry out an air traffic control service and only basic flight information was available. The strikers' attitude gave rise to situations where there was conflict of movement in the air traffic. Moreover, from 20 to 22 November 1996 the strikers' representatives (the leadership of APACTA) were offered a new work timetable which would allow air traffic controllers to return to work but the latter decided to continue the strike. These representatives, however, told their membership that they had no reason to go to work as they had been dismissed.

C. Additional information from the Government

302. In its communication of 7 October 1997 the Government provided the following information:

D. The Committee's conclusions

303. The Committee observes that in this case the complainant is objecting to the dismissal of numerous air traffic controllers who had declared a strike in order to achieve appropriate legal regulation of the working conditions of air traffic controllers following the non-promulgation of a Bill drawn up by a tripartite committee in response to claims for improved working conditions that APACTA had been trying to establish for a number of years.

304. The Committee observes that the Government stresses the following points: (1) that the issue related to a draft Bill; (2) that the tripartite committee left certain questions (salary scales and retirement provisions) pending; (3) that communication was still under way between the parties concerning the draft Bill; (4) that on 18 November 1996 the Civil Aeronautics Directorate promised to reply to APACTA within one week but on the following day the air traffic controllers entirely suspended their work throughout the country; (5) that adoption of laws is the responsibility of the Legislative Assembly, which acts autonomously and independently to the Government; (6) that, given the severity of the offence committed (which is entirely contrary to prevailing legislation; which endangered the lives of the passengers and the safety of aircraft; which caused enormous damage and led to losses amounting to millions, in particular the changing of the passwords on the radar system), the sanction applied, in accordance with legislation, was the immediate dismissal of the 72 officials who abandoned their duties in such an untimely manner; (7) that air traffic control is an essential activity under national legislation wherein strikes are forbidden and that international treaties signed by Panama impose extensive obligations as far as air safety is concerned.

305. The Committee has considered that the right to strike may be restricted or prohibited in essential services in the strict sense of the term (that is, services which, if interrupted, would endanger the life, personal safety or health of the whole or part of the population) and that air traffic control is an essential service [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 526 and 544]. In this situation, as the complainant has not sent the additional information requested; as air traffic control is considered an essential service; taking into account that, according to the Government, during the strike the passwords to the radar system were changed; and as the air traffic controllers were offered a chance to return to work which they declined, the Committee considers that since public safety was endangered it cannot ask the Government to allow the request for a return to work of those who were fired, which was claimed by the complainant.

306. The Committee notes that according to the Government there are no compensatory procedures in national legislation (for example, conciliation or arbitration) that public servants deprived of the right to strike may have recourse to should a conflict arise with their employers (in this case air traffic controllers). In this respect, the Committee recalls that "employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery" [see Digest, op. cit., para. 551]. The Committee requests the Government to take the necessary measures to introduce provisions into legislation to provide this.

 The Committee's recommendation

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

Recalling that "employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery", the Committee requests the Government to take the necessary measures to introduce provisions into legislation to provide this.

 

Case No. 1852

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

Complaint against the Government of the United Kingdom
presented by
the Trades Union Congress (TUC)

Allegations: Acts of interference and of anti-union
discrimination by the employer

308. The Committee already examined the substance of this case at its meeting in May-June 1996, when it presented an interim report to the Governing Body [see 304th Report, paras. 474-498, approved by the Governing Body at its 266th Session (June 1996)].

309. The Government sent additional observations on this case in a communication dated 4 March and 18 December 1997.

310. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers' Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

311. The Trades Union Congress (TUC) alleged that British law and practice continued to be incompatible with the obligations arising from the ratification of Convention No. 98, notably in respect of the lack of protection against discrimination at the time of recruitment and against anti-union discrimination in employment short of dismissal. In particular, the TUC referred to the alleged intimidation of trade union members at the Co-Steel plant in Sheerness, England, intended to bring about the derecognition of the TUC-affiliated trade unions, the Iron and Steel Trades Confederation (ISTC) (which was the majority union) and the Amalgamated Engineering and Electrical Union and the absence of any remedy in law.

312. The Government for its part stated that its general employment law was entirely consistent with the requirements of Convention No. 98 and, referring to section 146 of the Trade Union and Labour Relations (Consolidation) Act (TULRA), 1992, recalled that United Kingdom legislation provided wide-ranging and effective protection against discrimination in employment on grounds of union membership, and indicated that the amendment made by section 13 of the Trade Union Reform and Employment Rights Act (TURER), 1993, was intended to ensure that the law could not be used against employers who take reasonable action to further a change in their negotiating arrangements.

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

(a) The Committee calls again on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organizations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. The Government is requested to keep the Committee informed in this regard.

(b) As concerns the specific allegations of anti-union tactics taken by the management of Co-Steel, the Committee requests the Government to take the necessary measures immediately to begin an inquiry into these allegations and to furnish the Committee with the findings so that it may have available the information necessary for its examination of the case. Furthermore, if the findings of the inquiry demonstrate that the company has carried out acts of anti-union discrimination, the Committee requests the Government to take suitable measures to remedy the effects of any such acts.

B. The Government's additional observations

Reply of 4 March 1997 (former Government)

314. In reply to the Committee's interim recommendations, the Government underlined its belief that neither Convention No. 87 nor Convention No. 98 required a State to take powers to investigate the internal industrial relations arrangements of companies, or to call them to account for breaches of its laws ensuring compliance with those Conventions. The Government attached to its reply, however, a letter which Co-Steel had voluntarily supplied to the Confederation of British Industry (CBI) on the points raised by the TUC. The Government reaffirms that United Kingdom law provides trade union members with effective protection against discrimination. People who believe they have been discriminated against on grounds of their trade union membership or activities can seek redress by complaining to an industrial tribunal. The Government states that it is not aware of any such complaints being made about Co-Steel.

315. The Government points out that States cannot force employers not to breach the civil law rights which secure compliance with the Conventions or force employees to seek legal redress when those rights are broken. The Government firmly believes that it complies with the Conventions by providing a framework of legal rights protecting the right of employees not to be discriminated against on trade union grounds, and making adequate remedies available to employees when those rights are broken. If the allegation of discrimination on the grounds of union membership made in this complaint are true, although the Government points out that Co-Steel rejects them, the employees concerned would have had good grounds for complaining to an industrial tribunal. The Government publicizes the civil law rights of employees by issuing guidance leaflets which are widely available from employment service offices throughout the country. The Government therefore strongly submits that it could in no sense be held responsible for the fact that the employees have chosen not to make use of the legal remedies available to them.

316. As concerns the protection of workers against prejudicial acts on grounds of union membership, the Government indicates that under section 146 of the TULRA a threat to dismiss employees unless they give up their union membership is action short of dismissal taken for the purpose of preventing or deterring them from being trade union members. The amendments made to section 148 by section 13 of the 1993 Act cannot apply because it is clear that the only possible purpose of requiring employees to enter into contracts prohibiting membership, and threatening dismissal if they do not, is to deter union membership. Nor do there appear to be any allegations of inducements being offered to their employees as was the case in the Wilson and Palmer cases.

317. Under section 149 of the TULRA the compensation which may be awarded to a person who succeeds on a complaint of breach of section 146 is not limited to the financial loss sustained and there is no upper limit on the amount of compensation that may be awarded. While indicating that no civil remedy can guarantee that the right to which the remedy relates will never be broken, the Government considers this remedy to be adequate to dissuade employers not to infringe the rights given to employees by section 146.

318. The combined effect of sections 146 and 152 of the TULRA is that any term in a contract prohibiting union membership is, in practice, unenforceable and ineffective. Section 152 makes it automatically unfair to dismiss an employee for being or becoming a member of a trade union. This means that if an employee of Co-Steel subject to a term prohibiting union membership joins or rejoins the ISTC or any other union, and is dismissed or suffers action short of dismissal as a result, he or she will be able to make a complaint to an industrial tribunal which would almost certainly succeed. The compensation awarded on such a complaint is likely to be substantial. Sections 146 and 152 also protect against dismissal and action short of dismissal for taking part in trade union activities at an "appropriate time". In the case of an unrecognized union such as the ISTC, the term "appropriate time" covers, as a minimum, all time outside working hours and off the employer's premises.

319. The Government concludes that if Co-Steel employees have been threatened with dismissal or other penalties for taking part in union meetings in their own time or attending union rallies such as mentioned in the allegations, then the employees threatened or dismissed would be able to make a complaint to a tribunal which would almost certainly succeed.

320. As regards section 13 of the TURER, the Government states that it now considers the provisions of that section to be irrelevant to the allegations made in this case. The legal right to join a trade union does not imply an additional right to have that union bargain with employers over such matters as terms and conditions. The law on action short of dismissal has always been intended to deal with individual rights of employees, not collective bargaining issues. The Government introduced section 13 to ensure that a provision which protects individuals against discrimination on grounds of trade union membership does not have the unintended side effect of preventing employers from changing their arrangements for collective representation (emphasis is the Government's). Action taken by an employer to change negotiating arrangements with a trade union does not amount per se to action taken to deter workers from becoming, or prejudice them from being, union members.

321. The Government asserts that it has evolved sophisticated voluntarist methods of pay determination which continue to include a significant amount of collective bargaining. However, since industrial relations in the United Kingdom are based on voluntarism, backed up by statutory employment rights for individuals, it would be inappropriate for the Government to interfere by forcing employers to retain systems of collective bargaining which they feel are no longer suited to their needs. Employers are therefore free to decide for themselves, in the light of their circumstances and the needs of their businesses, whether to recognize, or continue to recognize a trade union, for collective bargaining purposes. Derecognition of trade unions does occur, though not particularly frequently. Co-Steel's decision to derecognize cannot be regarded as fundamentally inconsistent with industrial relations practices and traditions in the United Kingdom, nor is it contrary to United Kingdom law.

322. As regards the Committee's assertion that section 13 "is likely to result in a situation wherein collective bargaining is easily and effectively discouraged instead of being encouraged", the Government once again emphasizes that section 13 has a neutral effect (emphasis is the Government's), permitting employers to encourage (or discourage) the spread of collective bargaining. Collective bargaining continues to be an option available to employers and to organizations of employers and of workers, who freely wish to establish terms and conditions of employment by means of agreements reached through such negotiation. Nearly 50 per cent of the workforce have their pay and conditions determined, at least in part, by collective bargaining.

323. Finally, the Government adds that United Kingdom law provides mechanisms funded by the Government under which collective bargaining machinery can be encouraged and established where the employer and union agree in principle that this is the right way to settle workers' terms and conditions. For example, the Government finances ACAS, the conciliation and arbitration service. The existence of ACAS underpins collective bargaining since the parties know that an impartial and independent service is always available to help should disputes arise. In addition, ACAS can help employers and employees revise or establish collective bargaining machinery where both parties voluntarily wish to pursue this approach.

324. In conclusion, the Government firmly reiterates its view that it has not breached any of its obligations under Convention No. 87 or Convention No. 98 and again submits that this complaint should be rejected by the Committee.

325. The letter from Co-Steel to the Confederation of British Industry, explained that in 1992 the management had introduced a new approach to industrial relations which involved establishing an all-staff status company which included derecognizing the trade unions for bargaining purposes. This derecognition took place in accordance with United Kingdom labour law. New employment contracts did not preclude trade union membership to any staff who wished to continue. The company policy, therefore, is that employees are free to join or not to join a trade union.

326. According to Co-Steel, derecognition took place to facilitate the growing demands of management and employees to participate in a different form of employment relationship. Co-Steel indicated that it had expressed no hostility to trade unions at that time, or currently. The company has never objected to trade union officials handing out "fliers" and newspapers to staff entering or leaving work. Nor has it objected to staff reading union papers at work. Further, the company has never been challenged at an industrial tribunal concerning trade union membership rights.

327. Co-Steel adds that in the years when the ISTC was recognized there were a number of difficulties. The company maintains that the union lost ground and influence in 1974 when three craft unions broke a single union plant agreement which the ISTC had achieved in 1972. In 1977, and despite using the Advisory Conciliation and Arbitration Service (ACAS), the ISTC failed in ballots to secure recognition for supervisory and administrative staff.

328. Concerning the specific allegations made by the complainant concerning ISTC, Co-Steel has provided the following information:

(1) There is no requirement in the individual contracts for staff to belong or not to belong to a trade union and the disciplinary and grievance procedures include the opportunity for staff involved to include a staff colleague throughout.

(2) Access to trade union representatives: United Kingdom law does not require companies to permit trade union representatives access to their works. However, employees who may be trade union members have the opportunity of meeting trade union officials off-site.

(3) ISTC ballot in 1992: There is no requirement in United Kingdom law for the company to take note of the ballot and employees in the company ignored the ballot as they voluntarily accepted new contracts of employment.

(4) Failure to accept new contracts: Only one employee declined to accept the new contract for personal reasons unconnected with trade union issues.

(5) Suppliers and trade unionism: There are no contractual matters which specify that a supplier has to either recognize trade unions or operate without trade unions.

(6) Communication with ISTC: The company is not required under United Kingdom law to communicate with the ISTC.

(7) TUC rally: The company did not tell anyone that their attendance would compromise their employment. The company does not support disturbances on public highways and in the community and posted a notice which "suggested that everyone should avoid getting involved". Co-Steel believes that no one attended because they did not consider it appropriate. However, if staff had attended they would certainly not have been disciplined.

329. As concerns the general environment, Co-Steel, in a search for a new understanding in the field of industrial relations, introduced, by agreement with the in-house Joint Union Representative Committee (but resented and opposed by the ISTC officials external to the company), a completely new approach in 1988. According to Co-Steel, the employees took to the new perspective on industrial relations so well that the trade unions became increasingly marginalized and unnecessary. Increasingly staff expressed no interest in trade unionism, and many staff had left trade unions and very few new staff joined. By 1991 union density across all unions and the whole company had fallen to its lowest recorded level of 61 per cent. As a result the company derecognized all four trade unions in April 1992. Each person was offered new personal contracts and 99.9 per cent of the hourly paid employees accepted these in just 20 days.

330. Co-Steel concludes that a new direction has been set in the company and opportunities are in place, all designed to produce a high-performing company capable of meeting the ever-increasing competitive environment of the new millennium (all done within the current legal framework on industrial relations in the United Kingdom).

331. Co-Steel indicates its willingness to receive members of the ILO for a visit if needed.

Reply of 18 December 1997 (new Government)

332. In its communication dated 18 December 1997, the Government has indicated that the Minister of State at the Department of Trade and Industry has met with the General Secretary of the Iron and Steel Trades Confederation to listen to the union's views about this case. At this meeting, the ISTC told the Minister that their members continue to encounter serious problems in exercising their trade union rights. The Minister expressed the Government's commitment to ensure that individuals are free to join, or not to join, a trade union and that a union should be recognized for collective bargaining purposes, where a majority of the relevant workforce voted in favour of recognition in a ballot.

333. It was further indicated that the Department of Trade and Industry was preparing a White Paper on fairness at work for publication in the first part of 1998. The White Paper will contain proposals to establish decent standards at work, while maintaining an adaptable labour market and improving competitiveness and is to focus on union recognition. In the drafting of the White Paper, inputs were received from the social partners and the ISTC also agreed to provide information on their members' experiences at Co-Steel. Once the paper is published, the Government has indicated that the ISTC will have another opportunity to provide its views before legislation is drafted.

334. Finally, the Government also transmitted additional information provided by Co-Steel which reiterates the information already noted above.

C. The Committee's conclusions

335. Firstly, while noting with interest the steps taken by the Minister of State at the Department of Trade and Industry to meet with the leaders of the Iron and Steel Trades Confederation (ISTC) and listen to their views concerning the situation at Co-Steel Sheerness, the Committee notes with regret that no steps have been taken to undertake a full inquiry into the specific allegations of anti-union tactics as was requested in the recommendations in this case when it was first examined [see 304th Report, paragraph. 498(b)]. The absence of a full inquiry into this case is particularly problematic in light of the fact that the positions presented by the complainant and by Co-Steel are quite often contradictory. The Committee must therefore recall that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 754.]

336. Where Co-Steel has admitted to the facts as presented by the TUC, however, the Committee considers that it may proceed with an examination of the substance of the complaint on these points. The Committee recalls the complainant's allegations that, in response to efforts on the part of the management to put forward new contracts in 1992 which, according to the complainant, included requirements to give up trade union membership, the ISTC had called branch meetings to determine whether Co-Steel employees wanted their pay and conditions to continue to be determined by collective bargaining and whether they wanted the ISTC to represent them in this respect. The complainant indicated that, of the 442 people eligible to vote, 348 (78.74 per cent) opted for collective bargaining and to be represented by the ISTC. Co-Steel indicates in its letter to the CBI that there is no requirement in United Kingdom law for the company to take note of the ballot and that, following a fall in 1991 of union density across all unions and the entire company to 61 per cent, the company had simply decided to derecognize the ISTC and the other three unions. Co-Steel has not however refuted the results of the 1992 ballot as indicated in the allegations.

337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes [see Digest, op. cit., paras. 845 and 824]. While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, Co-Steel has by-passed the representative organization and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organizations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organizations and requests the Government to keep it informed of the progress made in this regard.

338. As concerns the allegation that access to the Co-Steel workplace was denied to the ISTC, the Committee notes from the information made available to it by the previous Government that United Kingdom law does not require companies to permit such access to trade union representatives but that members may meet outside the workplace. In this respect, the Committee must once again recall, as it did in its initial examination of this case, that workers' representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces [see Digest, op. cit., para. 957]. Furthermore, the Committee has held that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization [see Digest, op. cit., para. 954]. The Committee therefore requests the Government to take measures to ensure that the ISTC is afforded reasonable access to Co-Steel both for contact with its members and potential members. It requests the Government to keep it informed in this respect.

339. The Committee also notes that Co-Steel is not required by law to communicate with the ISTC. Particularly in light of the apparent representative nature of the ISTC demonstrated in the 1992 ballot, the Committee wishes once again to recall that the Workers' Representatives Recommendation, 1971 ( No. 143) provides that workers' representatives should be granted without undue delay access to management of the undertaking and to management representatives empowered to take decisions, as may be necessary for the proper exercise of their functions.

340. As concerns the TUC rally held in Sheerness in support of the right to representation within the workplace, the Committee notes from the information provided by the Government that Co-Steel had indicated that it did not tell anyone that their attendance would compromise their employment but that it did post a notice "suggesting that everyone should avoid getting involved". In this respect, the Committee must recall that the right to organize public meetings constitutes an important aspect of trade union rights [see Digest, op. cit., para. 464] and such activity would seem all the more legitimate given that, in the present case, its specific purpose was to address the clearly legitimate trade union issue of the right to representation. The Committee considers that the posting of a notice by the management suggesting that the employees of Co-Steel not get involved in such a rally could be understood as a threat to the workers in question not to exercise their trade union rights in this respect and therefore constitutes undue interference with such rights. It requests the Government to make all efforts to ensure that such interference does not reoccur.

341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the TURER, the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights [see 294th Report, Case No. 1730] wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention No. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal [see 294th Report, Case No. 1730, para. 199]. The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organizations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.

The Committee's recommendations

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

(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organizations and requests the Government to keep it informed of the progress made in this regard.

(b) Regretting that no steps were taken by the Government to undertake a full inquiry into the specific allegations of anti-union tactics in this case, the Committee recalls to the Government the importance it attaches to the principle that, in cases where there are allegations of anti-union discrimination, the competent authorities should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination.

(c) The Committee requests the Government to take measures to ensure that the ISTC is afforded reasonable access to Co-Steel both for contact with its members and potential members and requests the Government to keep it informed in this respect.

(d) Considering that the posting of notices suggesting that employees not get involved in a rally called by the complainant in support of the right to representation constitutes undue interference with the legitimate exercise of trade union rights, the Committee requests the Government to make all efforts to ensure that such interference does not reoccur.

(e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organizations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.

 

Case No. 1912

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

Complaint against the Government of the
United Kingdom (Isle of Man)
presented by
the Isle of Man Trades Council

Allegations: Interference in industrial action (sit-in);
anti-union discrimination; dismissal of a trade unionist

343. The Isle of Man Trades Council presented a complaint against the Government of the United Kingdom (Isle of Man) in a communication dated 18 December 1996, alleging violations of Conventions Nos. 87 and 98. Further information was received from the Isle of Man Trades Council in a communication dated 27 January 1997. In response to the allegations, the Government transmitted observations and information in communications of 4 March and 17 July 1997 and 23 January 1998.

344. The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151) have been declared applicable to the Isle of Man.

A. The complainant's allegations

345. In its communication of 18 December 1996, the complainant alleges that the Government, through the Manx Electricity Authority (MEA), a Statutory Board, violated Article 3 of Convention No. 87 in threatening to dismiss workers involved in a sit-in if they did not immediately return to work. The complainant further contends that the overall intent of Conventions Nos. 87 and 98 has been contravened since the MEA intended to inhibit the ability of the Transport and General Workers Union (TGWU) to represent and protect its members.

346. The complainant explains that there was a dispute involving workers in the Manx Electricity Generation Division at Pulrose power station in June 1996. As a result of the dispute, the workers participated in a sit-in at Pulrose in a mess-room facility separate from the operational installation. The action commenced at 10 p.m. on 12 June 1996 and continued until 13 June 1996. Approximately 25 workers were involved in the dispute, mainly members of the TGWU, though in the initial stage, a small number of Amalgamated Engineering and Electrical Union members were also involved. According to the Isle of Man Trades Council, the TGWU members had been balloted in accordance with the provisions of the Trade Union Act, 1991. Shortly after midday on 13 June 1996, a management official informed the workers taking part in the sit-in that if they did not immediately return to work, they would be deemed to have dismissed themselves.

347. In support of the contention that the MEA acted with intent to inhibit the ability of the TGWU to represent and protect its members, the complainant points to the retaliatory measures threatened against workers taking part in legitimate trade union action and the subsequent dismissal of the senior trade union representative of the TGWU (Mr. Volante).

348. The complainant asserts that the legal provisions were complied with and that the union recognized the critical importance of the work involving power generation to a small island community. Initially, key switch control staff were left to maintain the system and the union had indicated at all times during the dispute that emergency coverage could be provided.

B. The Government's reply

349. The Government in its replies of 4 March and 17 July 1997 and 23 January 1998 examines the status of the Manx Electricity Authority (MEA), noting that it is responsible for generating and distributing electricity throughout the island from its three power stations and a small hydroelectric power station. It is a Statutory Board, pursuant to the Statutory Boards Act, 1987. The MEA is responsible for its own employment and industrial relations policies and practice. A Terms and Conditions Agreement was negotiated with the three trade unions with which the MEA deals: the Transport and General Workers Union (TGWU), the Amalgamated Engineering and Electrical Union (AEEU) and the Engineers' and Managers' Association (EMA). The statutory limitations on the MEA's independence are set out in the Statutory Boards Act, 1987 and the Electricity Act, 1996.

350. Regarding the dispute, the Government notes that a new Terms and Conditions Agreement, negotiated and agreed with the recognized trade unions, was signed on 1 March 1995, with retroactive effect from 1 April 1994. The new agreement no longer provided for payment for travel before the start of the working day. On 2 March 1995, the employees were issued with a new contract of employment, two booklets detailing the negotiated agreement, and a letter stating that the Isle of Man (and not the individual site) was their place of work. The TGWU raised as a disputed issue travel of their members in their own time and with their own transport to a different location at the start of the working day.

351. The Government states firstly that the agreed internal procedures had not been exhausted. According to the Government, these additional internal procedures which could have been utilized had previously been agreed by all of the trade unions, including the TGWU. The Government explains that the Manx Electricity Authority (MEA) Terms and Conditions Agreement contains a "Procedure for the avoidance of disputes" in order to deal with differences between the MEA and any of the recognized trade unions by the establishment of a Disputes Subcommittee comprising up to three officers of the MEA and up to two full-time officers of the trade unions not involved in the dispute. If the Disputes Subcommittee cannot settle the dispute, there is a procedure for the matter to be referred to the Joint Negotiating Council (JNC), the parties to which are the MEA and the recognized unions. The constitution of the JNC contains a specific "Settlement of differences procedure". In cases where the JNC itself is unable to resolve a matter referred to it, there is provision for either conciliation or pendulum arbitration, with the arbitrator finding in favour of one side or the other.

352. The Government states that the MEA was prepared to use these various internal procedures to resolve the dispute but that the TGWU refused to exhaust the procedures that had been agreed by all parties and decided instead to hold a secret ballot as required under the Trade Unions Act, 1991. The legislation requires that the questions relating to strikes or other industrial action be phrased in such a way as to remind workers that such action will involve them in a breach of contract of employment. A majority voted in favour of strike action, and a larger majority voted in favour of action short of a strike.

353. On 4 June 1996, the TGWU decided that the industrial action would take the form of a ban by the day-work maintenance staff on travel between power stations, even if transport were provided. At 11.45 a.m. on 11 June 1996, the TGWU District Officer advised the Industrial Relations Officer, who had acted as the independent chairperson during talks between the TGWU and the MEA, that the industrial action would take immediate effect. The Industrial Relations Officer forwarded this information to the MEA by facsimile at 12.15 p.m. the same day. The Government contends that all members of management were not immediately informed of the existence of the industrial action; there was also some confusion as to whether the industrial action was official or unofficial.

354. On 12 June 1996, the action constituting the substance of the complaint commenced. The Maintenance Manager requested Mr. Volante, a fitter, and Mr. Harrison, fitter's mate, to travel to another power station during MEA time and using MEA transport to undertake urgent work. The Government states that Mr. Volante and Mr. Harrison were asked to take a component from Pulrose power station to Peel power station and fit in to an engine which had broken down. Their supervisor judged that the carrying out of this work had priority over the work which they had been undertaking and that it was considered urgent by the MEA. The employees refused. Mr. Volante told the Maintenance Manager that he "did not work with contractors" and that "there was a dispute over travelling". The Maintenance Manager, allegedly unaware of the decision to take industrial action, remarked that if they did not comply, there would be no work for them at their present station and probably no pay. The employees believed they had been suspended, though the Government maintains that this was not in fact the case. Messrs. Volante and Harrison reported the incident to their colleagues, resulting in a sit-in at two of the power stations.

355. The Government states that TGWU members who were involved in the sit-in initially tried to prevent the operation of the station by picketing the gate before withdrawing to the mess room and that they made no contribution to the running of the station. Further, the Government states that the MEA did not receive notification from the TGWU of any members that were either working or were prepared to work during the dispute. But because TGWU members only constituted part of the workforce, urgent work was maintained. The Government also points out that the other recognized unions were not in dispute with the MEA and did not take part in the sit-in whilst, in addition, some TGWU members did not agree with their union's chosen course of action and therefore continued to work.

356. Afterwards Messrs. Volante and Harrison were given written instructions to travel to the other power station, stipulating that suspension would result if they refused. As a result of their continuing refusal, they were advised in writing that they were suspended with pay pending the matter being dealt with in accordance with the internal disciplinary procedures. They then refused to comply with an instruction to leave the site. They were informed that this further refusal would be regarded as an additional breach of the Employee Rules.

357. On 13 June 1996, the Industrial Relations Officer reminded the workers involved in the sit-in that, in accordance with the ballot papers they had completed, in taking industrial action they were breaching their contracts of employment. They were subsequently advised by a member of management that as a result of the sit-in, the workers were in breach of their contracts of employment and would be deemed to have dismissed themselves if they did not return to work immediately. The workers involved in the sit-in then returned to work and Messrs. Volante and Harrison left the site.

358. Formal disciplinary interviews were held with Messrs. Volante and Harrison; as a result, both were dismissed. This decision was appealed to the Chief Executive of the MEA who confirmed the dismissal in the case of Mr. Volante and varied the penalty in the case of Mr. Harrison. According to the Chief Executive, the difference between the two was their previous disciplinary record and the fact that Mr. Volante was the fitter and Mr. Harrison the mate. Mr. Harrison was downgraded and transferred to another location.

359. In accordance with the agreed internal disciplinary procedure, a further appeal in the case of Mr. Volante was held before an independent person, an arbitrator from the Advisory, Conciliation and Arbitration Service (ACAS), assisted by two non-voting assessors. The independent person confirmed the dismissal. The Government then summarizes the reasons of the independent person for confirming Mr. Volante's dismissal, including his failure to inform the Maintenance Manager that his refusal to travel to the other power station was based on the existence of industrial action, his failure to establish if he had been suspended by the Maintenance Manager and his refusal to leave the power station The Government attached a copy of the decision to its communication of 4 March 1997. Mr. Volante brought a case of unfair dismissal before the Employment Tribunal, which had been scheduled for hearing on 17 March 1997. In its communication of 17 July 1997, the Government informed the Committee that the dispute would not proceed to the Employment Tribunal because the matter was settled through conciliation on 15 May 1997. The original dispute between the MEA and the TGWU involving travel before the start of the working day was resolved through internal procedures.

360. In commenting on the facts, the Government claims that the initial dispute involving the TGWU was unfounded, and in any event, the agreed dispute settlement machinery should have been used to resolve the dispute. The Government attached to its communication a copy of the agreement on the procedure for the avoidance of disputes. Further, the Government argues that the TGWU did not exhaust the procedures for resolving disputes under the Trade Disputes Act, 1985, gave virtually no notice of the industrial action and did not make it clear whether the action was official or unofficial.

361. Regarding the threat to dismiss those participating in the sit-in, the Government asserts that "whether 'intimidation, threats or retaliation' ... is an accurate description of the MEA's reminder to its employees of their contractual position, is a question of semantics ..." It goes on to state that on the evening of 12 June 1996, Mr. Volante made a tacit threat of violence against the Generation Manager.

362. The Government cites the recent legislation that in its view enhances worker protection, including the Employment Act, 1991 under which an employee dismissed while participating in official or unofficial industrial action may bring a case of unfair dismissal providing one or more of the other employees participating in the industrial action at the date of the complainant's dismissal were not dismissed; or one or more of those employees have within three months been offered re-engagement and the complainant has not. Under the Trade Union Act, 1991, workers taking industrial action are not liable for damages to their employers for breach of their contracts of employment. Finally, the Government cites the Trade Disputes Act, 1985 which provides for collective trade disputes to be referred to the independent Industrial Relations Service for possible resolution.

C. The Committee's conclusions

363. The Committee notes that this case raises allegations of interference with the right of a trade union to organize its administration and activities and to formulate its programmes. It also advances issues of anti-union discrimination, in particular dismissal and downgrading/transfer of those involved in legitimate trade union activities.

364. The first issue that arises is the fact that the agreed internal procedures for the resolution of a dispute had not been exhausted. The Committee notes that several additional internal procedures for the avoidance and settlement of disputes which could have been utilized were ignored by the TGWU. In this regard, the Committee recalls that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 500]. The Committee considers that in this case, the agreed dispute settlement machinery should have been used by the TGWU to resolve the dispute.

365. Secondly, although neither of the parties has made reference to it, the Committee recalls that it has in the past considered electricity services as essential services. The Committee has expressed the view on several occasions that the right to strike may be restricted or even prohibited in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., paras. 536 and 544]. In this regard, the Committee notes that in this particular case strikes in the power stations are permitted by the national legislation. Referring to the Government's complaint that virtually no notice was given of the industrial action, the Committee recalls that the requirement for a period of notice to be given in services of social or public interest does not undermine the principles of freedom of association [see Digest, op. cit., para. 504]. The Committee feels that such period of notice, especially in the case of essential services, should have been given.

366. Regarding the allegations of anti-union discrimination set out in the complaint, three issues arise: first, whether the treatment of Mr. Harrison, who was downgraded and transferred due to his conduct during the industrial action, amounted to anti-union discrimination; second, whether the dismissal of Mr. Volante, a senior trade union representative, for his conduct during the course of industrial action, amounted to anti-union discrimination; and finally, whether there is effective protection for workers taking part in industrial action.

367. As regards Mr. Volante's situation, the Committee notes that a settlement has been reached on this matter between Mr. Volante and the MEA through conciliation. In these circumstances, the Committee considers that this aspect of the case does not call for further examination. As regards Mr. Harrison's situation, the Committee notes that his demotion and transfer came after his refusal to cooperate with the written orders of the Maintenance Manager. The Committee is of the view that in such cases, the sanctions should remain proportionate to the fault that was committed. Considering all the circumstances of this case, including the fact that Mr. Harrison has been downgraded and transferred for a considerable amount of time, the Committee urges the Government to take the necessary measures to ensure as soon as possible the reinstatement of Mr. Harrison to his former employment status.

368. As regards the more general protection for workers taking part in industrial action, the Committee notes that the Government in its reply points out that, pursuant to section 49 of the Employment Act, 1991, workers are protected from selective dismissal and from selective denial of re-engagement. However, the Committee notes that this provision does not provide adequate protection since it still permits an employer to dismiss an entire workforce, and to rehire on a discriminatory basis as long as there is at least a three month delay between the dismissal and the rehiring. The Committee shares the opinion of the Committee of Experts on the Application of Conventions and Recommendations which stated as follows:

The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour; and (ii) because an employer can rehire on a discriminatory basis so long as there is a gap of three months between the dismissal of the "victimized" workers and the rehiring. Consequently, the Committee asks the Government to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above.

369. The Committee, therefore, urges the Government to amend the relevant legislation to ensure protection against dismissal and other prejudicial acts for participating in industrial action. The Committee draws this aspect of the case to the attention of the Committee of Experts.

The Committee's recommendations

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

(a) Concerning the allegations of anti-union discrimination and taking into account all the circumstances of this case, including the fact that Mr. Harrison has been downgraded and transferred for a considerable amount of time, the Committee urges the Government to take the necessary measures to ensure as soon as possible the reinstatement of Mr. Harrison to his former employment status and requests that it be kept informed in this regard.

(b) The Committee urges the Government to amend the relevant legislation to ensure protection against dismissal and other prejudicial acts for participating in industrial action. The Committee draws this aspect of the case to the attention of the Committee of Experts.

 

Case No. 1843

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

Complaint against the Government of Sudan
presented by
the (legitimate) Federation of Workers' Trade Unions
of Sudan (FSTS)

Allegations: Violent deaths and arrest of trade unionists,
government interference

371. The Committee already examined the substance of this case at its March 1997 meeting, when it presented an interim report to the Governing Body [see 306th Report, paras. 601 to 618, approved by the Governing Body at its 268th Session (June 1997)]. In the absence of the observations requested from the Government, the Committee, at its May-June 1997 meeting, decided to adjourn its examination of this case [see 307th Report, para. 5]. At its November 1997 meeting, the Committee addressed an urgent appeal to the Government to send its observations [see 308th Report, para. 9].

372. In a communication of 10 January 1998, the (legitimate) Federation of Workers' Trade Unions of Sudan (FSTS) presented new allegations concerning further violations of the trade union rights by the Government.

373. The Government sent its observations in a communication dated 19 February 1998.

374. Sudan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

375. The (legitimate) Federation of Workers' Trade Unions of Sudan (FSTS) presented allegations to the effect that a large number of trade unionists were dismissed following governmental administrative decisions. According to the FSTS, more than 95,000 workers lost their jobs following decisions from which there could be no appeal. Moreover, the FSTS alleged that many workers were the victims of torture or ill-treatment. Furthermore, the complainant claimed that the abrogation and replacement of the Trade Union Act of 1986 by the 1992 Act resulted, among other things, in the dissolution of trade unions in existence at that time, the legalization of government interference in trade union affairs, as well as the arrest and detention of trade union officials, often accompanied by acts of torture. Finally, the FSTS claimed that the appeal body, set up by Ministerial Order No. 723 for the re-examination of complaints by workers unfairly dismissed, was not impartial or objective.

376. The Government, for its part, sent partial information where it merely indicated that the workers dismissed had lost their jobs following the reorganization or dismantling of enterprises operating at loss, or that their performance had been judged unsatisfactory. As for Ministerial Order No. 723, the Government claimed that 76 per cent of the applicants had been reinstated in their workplaces or received an increase in the compensation initially paid at the end of their employment. Finally, the Government claimed that since the law did not authorize it, no trade unionists were being detained in Sudan.

377. At its June 1997 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

(a) Deeply regretting that the Government has not furnished any precise information on the allegations of anti-union measures allegedly taken against workers whose names and identification details were transmitted by the complainant organization as well as on the trade union officials named by the latter, the Committee requests the Government: (a) to state the situation of the workers whose names appear in Appendices I and II of this report as well as that of the trade union officials whose names are given in Appendix III and to indicate whether these persons have benefited from the measures recommended by the appeal body; and (b) to indicate the action given to the recommendations by the appeal body in which it proposes, in cases of dismissal resulting from the reorganization or selling off of public enterprises, an increase in the compensation initially paid in respect of the said termination of employment.

(b) As regards the very serious allegations of arrest and detention of trade union members, the Committee urges the Government to take the necessary measures to guarantee that trade union members and officials are not subjected to measures of arbitrary arrest, detention and sentencing for exercising their trade union functions or activities in defence of their rights and interests.

(c) Recalling the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights, according to which no one should be subjected to torture and insisting that all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person, the Committee requests the Government: (a) to open an inquiry in order to establish the precise circumstances in which Mr. Mohamed Babiki, Secretary-General of the Employees' General Trade Union, and engineer Yousif Hussain were allegedly tortured and the causes of the death of Mr. Abdel Moniem Suliman, member of the Executive Committee of the Teachers' Trade Union (who died in 1990), and Mr. Abdel Moniem Rahma, member of the Transport Employees' Trade Union, Wad Medani, Gezira (who died in 1995); and (b) to take the necessary steps for legal proceedings against the guilty parties and for the redress of the prejudice suffered. Furthermore, the Committee requests the Government to keep it informed in this respect.

(d) Noting the many and serious incompatibilities between the 1992 Trade Union Act and the principles of freedom of association, the Committee requests the Government to review its legislation and once again draws the attention of the Committee of Experts to the legislative aspects of this case as regards the application of Convention No. 98, ratified by Sudan. The Committee requests the Government to keep it informed in this respect.

B. The complainant's further allegations

378. In its communication of 10 January 1998, the complainant states that in 1997, aggression against the leading trade unionists continued as they remained the targets for detention and torture. The FSTS cites, for example, the detentions of Osman Abdel Gadir, President of the Textile Trade Union in Medani city, Daoud Suliaman, Secretary of the Blue Nile Trade Union, and the trade unionist Ahmed Ali. Furthermore, the FSTS claimed that in 1997, the authorities continued mass dismissals of workers as well as continued interference such as practising forgery in the elections of trade unions.

C. The Government's further reply

379. In its communication of 19 February 1998, the Government firstly states that, with respect to the situation of the trade unionists mentioned in Appendices I, II, and III of the Committee's previous report, some of the persons referred to in the said lists were away from the trade union movement for the last 20 years while others have voluntarily terminated their employment. The Government then states six names whom it claims fall into such categories.

380. Concerning the dismissal of 95,000 trade unionists, the Government claims that since the workforce in the public sector does not exceed 600,000 workers, the number of dismissed workers referred to in the complaint is over-exaggerated. It goes on to explain that while many workers have lost their jobs due to economic adjustment programmes, this was done in conformity with the law and through tripartite committees.

381. As for the arrest and detention of trade unionists, the Government reiterates that no arrest is undertaken based on practising trade union activities. Finally, regarding the serious incompatibilities between the 1992 Trade Union Act and the principles of freedom of association, the Government states that in order to keep pace with new developments, the general conference of Sudan Workers' Trade Union Federation convened in February 1997, and adopted a recommendation to enact a new Trade Union Act in which the observations of the ILO bodies and the view of their social partners would be given due consideration.

D. The Committee's conclusions

382. The Committee recalls that this case refers to very serious allegations of violations of trade union rights in Sudan, and in particular measures of anti-union reprisals, including the arrest of trade unionists and acts of violence against them. In the light of the new allegations submitted by the FSTS, the Committee notes with deep concern that the Government has not taken any measures to implement the recommendations made by the Committee in its interim report.

383. As regards the mass dismissal of trade unionists, the Committee deeply regrets that the Government has only provided very partial information on the situation of the workers whose names appeared in Appendices I, II and III of the interim report. Moreover, the Committee deplores that the Government has not specified what action has been given to the recommendations by the appeal body. In this regard, the Committee can only note with deep concern that according to the complainant organization, the authorities have continued to dismiss workers massively in 1997 in the light of their privatization policy. The Committee urges the Government to address these issues and to provide the information previously requested as a matter of urgency and to keep it informed of measures envisaged or taken in this regard.

384. As regards the very serious allegations of arrest and detention of trade unionists, often accompanied by acts of torture, once again, the Committee can only note with grave concern that the Government does not provide any information in this respect, especially regarding the cases of Mr. Mohamed Babiki, Mr. Yousif Hussain, Mr. Abdel Moniem Suliman and Mr. Abdel Moniem Rahma. Furthermore, the Committee expresses its deep concern regarding the new allegations with respect to the detention and torture of Mr. Osman Abdel Gadir, Mr. Daoud Suliaman and Mr. Ahmed Ali. The Committee stresses the fact that the rights of workers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee recalls that in cases of alleged torture or ill-treatment while in detention, governments should carry out inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and sanctioning of those responsible, are taken to ensure that no detainee is subjected to such treatment. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, paras. 47 and 57.] Therefore, the Committee strongly urges the Government: (a) to open an inquiry in order to establish the exact circumstances in which Mr. Mohamed Babiki, Secretary-General of the Employees' General Trade Union, and engineer Yousif Hussain were tortured, the reasons why Mr. Osman Abdel Gadir, President of the Textile Trade Union in Medani city, Daoud Suliaman, Secretary of the Blue Nile Trade Union and trade unionist Ahmed Ali are being detained, and the exact circumstances in which they were tortured, as well as to open an inquiry on the causes of the death of Mr. Abdel Moniem Suliman, member of the Executive Committee of the Teachers' Trade Union (who died in 1990), and Mr. Abdel Moniem Rahma, member of the Transport Employees' Trade Union (who died in 1995); and (b) to take the necessary steps for legal proceedings against those responsible and the redress of the prejudice suffered. The Committee insists that the Government provide information in this respect as soon as possible and to keep it informed in this respect.

385. Finally, referring to its previous conclusions on this case, and in the light of new allegations of interference by the Government in trade union affairs, the Committee, while taking due note of the Government's indication that the Sudan Workers' Trade Union Federation adopted in February 1997 a recommendation to enact a new Trade Union Act, still points out to the many and serious incompatibilities between the 1992 Trade Union Act and the principles of freedom of association and therefore requests the Government to review its legislation as soon as possible and once again draws the attention of the Committee of Experts to the legislative aspects of this case as regards the application of Convention No. 98, ratified by Sudan.

The Committee's recommendations

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

(a) The Committee regrets that the Government has only responded partially to the serious allegations presented by the complainant, despite the fact that it was invited to provide more information on several occasions.

(b) Deeply regretting that the Government has only provided very partial information on the situation of the workers whose names appeared in Appendices I, II and III of the previous report, as well as not specifying what action has been given to the recommendations by the appeal body, the Committee, noting that the massive dismissals of workers has continued in 1997, urges the Government to address these issues and to provide the information previously requested as a matter of urgency and to keep it informed of measures envisaged or taken in this regard.

(c) As regards the very serious allegations of arrest and detention of trade unionists, often accompanied by acts of torture, the Committee urges the Government: (a) to open an inquiry in order to establish the exact circumstances in which Mr. Mohamed Babiki, Secretary-General of the Employees' General Trade Union, and engineer Yousif Hussain were tortured, the reasons why Mr. Osman Abdel Gadir, President of the Textile Trade Union in Medani city, Daoud Suliaman, Secretary of the Blue Nile Trade Union and trade unionist Ahmed Ali are being detained, and the exact circumstances in which they were tortured, as well as to open an inquiry on the causes of the death of Mr. Abdel Moniem Suliman, member of the Executive Committee of the Teachers' Trade Union (who died in 1990), and Mr. Abdel Moniem Rahma, member of the Transport Employees' Trade Union (who died in 1995); and (b) to take the necessary steps for legal proceedings against those responsible and the redress of the prejudice suffered. The Committee insists that the Government provide information in this respect as soon as possible and keep it informed in this respect.

(d) Finally, referring to its previous conclusions on this case, and in the light of new allegations of interference by the Government in trade union affairs, the Committee points out to the many and serious incompatibilities between the 1992 Trade Union Act and the principles of freedom of association, and therefore requests the Government to review its legislation as soon as possible and once again draws the attention of the Committee of Experts to the legislative aspects of this case as regards the application of Convention No. 98, ratified by Sudan. The Committee requests the Government to keep it informed in this respect.

 

Case No. 1812

Interim Report

Complaint against the Government of Venezuela
presented by
the International Secretariat of Arts, Communications and Maintenance Trade Unions/International Federation
of Audiovisual Workers (ISETU/FISTAV)

Allegations: Employer interference in the
establishment of a trade union

387. The Committee examined this case at its March 1996 and July 1997 meetings and presented interim reports to the Governing Body [see 302nd Report, paras. 519 to 534, and 307th Report, paras. 471 to 479, approved by the Governing Body at its 265th Session (March 1996) and its 269th Session (June 1997)].

388. The Government sent further observations in communications dated 20 May 1997 and 20 January 1998.

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

A. Previous examination of the case

390. In the previous examination of the case carried out in June 1997 [see 307th Report, paras. 471 to 479] the allegations remained pending that the management of the CORAVEN-RCTV broadcasting company had encouraged the establishment of a new trade union (SINATRAINCORATEL) -- approved very quickly by the authorities in 15 days -- by means of a number of anti-union activities (presence of representatives of the enterprise at the constituent meeting of the new trade union, threats of dismissal against workers who did not join the new union, negotiation of a collective agreement with the trade union when an earlier agreement was still in force -- the complainant organization says that the previous collective agreement was unilaterally cancelled by the enterprise -- etc.) and that the administrative authorities committed certain irregularities in the registration of the new trade union (there was no constituent meeting as such and members of the management belonged to the former union). The already existing trade union (Occupational Trade Union of Radio, Theatre, Cinema, Television and Allied Workers of the Federal District and State of Miranda -- SRTVA) lodged various appeals against the acts mentioned.

391. In its communication of 20 May 1997 the Government stated that the Ministry of Labour rejected two appeals from the SRTVA to have the registration of SINATRAINCORATEL cancelled and that it could institute legal proceedings within a period of six months after the last decision (3 January 1996). The Government indicates that it is not competent to cancel the registration of an organization since it would amount to a dissolution by administrative authority, which is in violation of Convention No. 87. Since SINATRAINCORATEL was created with employer interference, the parties concerned should appeal to the competent judicial organ.

392. The Committee asked the Government to indicate whether the SRTVA has instituted legal proceedings concerning the allegations of interference by the management of CORAVEN-RCTV in the creation as well as in the activities of the union SINATRAINCORATEL and, if this is the case, to inform it of the decision in question. The Committee also highlighted the extremely long period of time (from March 1994 to January 1996) taken by the Ministry of Labour to rule on SRTVA's appeal to have the registration of the new trade union (SINATRAINCORATEL), created with the interference of the employer, cancelled, and hopes that the judicial authority will be able to deliver a decision shortly.

B. The Government's reply

393. In its communications of 20 May 1997 and 20 January 1998 the Government sent a copy of the various appeals by SRTVA since February 1994 to the administrative authorities to have the registration of SINATRAINCORATEL cancelled, which were rejected, and indicates that the Ministry of Labour is not competent to cancel the registration of a union organization such as SINATRAINCORATEL, as requested by the complainant, as this would amount to a dissolution by administrative authority of a union organization which is in violation of Convention No. 87 and national legislation.

394. The Government adds that on 29 July 1996 the Occupational Trade Union of Radio, Theatre, Cinema, Television and Allied Workers of the Federal District and State of Miranda (SRTVA) instituted legal proceedings before the Supreme Court with an appeal for protection of its constitutional rights, as well as an appeal for annulment for reasons of unconstitutionality of the Administrative Act passed by the Directorate of the National Labour Inspection Services and Collective Labour Affairs of the Ministry of Labour on 24 January 1994 under which the National Union of Workers in the Radio and Television Industry CORAVEN-RCTV (SINATRAINCORATEL) is registered. The political and administrative chamber of the Supreme Court has not yet ruled on this matter. The Government, however, emphasizes that the Supreme Court is not competent in this matter and that those involved should have appealed to the jurisdiction of the administrative court.

395. The Government states that it cannot be claimed that the registration of SINATRAINCORATEL is contestable. In this case the dispute arises among members of the same union organization which is involved in its own break-up and subsequent creation of a parallel union, which is legally permitted within the precepts of freedom of association. To deny this would indeed constitute interference in exercising this right by those very workers who refused to accept the existence of another union in their sphere of labour. In this respect, the National Constitution lays down generically that unions, whether they be workers' or employers' unions, will only be subjected to the requirements that the law establishes for their existence and functioning. Only the legislator is capable of establishing the requisites for the constitution and functioning of union organizations and legislation is limited to establishing formal requisites that union organizations and the administration in charge of this subject must follow. In this respect it is not true that registration of the union took place outside the legal framework, as is evident in the report since the union organization fulfilled all legal requisites for its constitution according to the criteria of the Directorate of the National Labour Inspection Services and Collective Labour Affairs, whereby it was registered. According to the decision on an administrative appeal, the constituent meeting took place on 8 December 1993 and a meeting to elect a management committee took place on 21 December 1993 and was attended by 319 workers. Although this took place in premises belonging to the employers this does not mean that people were not acting of their own free will in forming a union.

396. The Government explains that the constitution of a number of unions in the same sphere of labour activity often attests to freedom in carrying out union activity and demonstrates the principle of union pluralism, which implies a legal prohibition against any interference in such exercise, establishing that not only the employer and the State are susceptible to involvement in conduct which might infringe this right but that, more frequently than one might think, it is the workers' union organizations themselves that become involved in such anti-union behaviour as just described.

397. As regards the "complacency" which the complainants allege was committed by the Directorate of the National Labour Inspection Services and Collective Labour Affairs in registering the union in "record time", the Government indicates that registration took place within the 30 days stipulated by the Organic Labour Act (section 425). This administrative diligence cannot be considered against the law as other unions were registered in the same legal time-limit.

398. As regards the fact that several of those people promoting the new union were part of the enterprise committee for the complainant, and according to its statutes were not able to form another union, it should be stated that the complainant should report them to the disciplinary tribunal and sanction them according to their statutes as this is an internal problem for the union itself and not one falling within the purview of the administrative office.

399. As regards the argument concerning the negotiation of a collective agreement for the new union, the authority that resolved the first administrative appeal indicates, with reference to the existence of collective provisions in force, that it is up to the Directorate of the National Labour Inspection Services to ensure that the principle of intangibility of the collective agreement be maintained. The Government indicates that, while it is correct that documentation for the new union omitted the address of affiliated workers, it did state that this was not serious and was easily corrected or able to be validated.

C. The Committee's conclusions

400. The Committee observes that this complaint concerns the registration of a union (SINATRAINCORATEL) -- approved very quickly by the authorities in spite of various anomalies -- which took place even though there already was a union in the radio and television enterprise CORAVEN-RCTV (this union was the SRTVA); and that the enterprise supported the constitution of a new union through various anti-union activities (presence of representatives of the enterprise at the constituent meeting of the new trade union, threats of dismissal against workers who did not join a new union, negotiation of a collective agreement with the new trade union when an earlier agreement was still in force, etc.). According to the complainant there was no constituent meeting as such and members of the executive belonged to the former union.

401. The Committee notes that the Government declares that: (1) once the new union was established a further meeting -- 15 days later -- was held to elect the executive committee and 319 workers attended this meeting; (2) in this case, freedom of association gave rise to a parallel union which is constitutionally acceptable in legislation; (3) the new union fulfilled all legal criteria; (4) the new union was not registered in record time but rather within the time-limit laid down by legislation; (5) the fact that the new union had leaders from the union committee already in existence is irrelevant; (6) as regards the existence of collective conditions already in force, it is the responsibility of the Directorate of the National Labour Inspection Services to oversee the principle of intangibility of collective agreements; (7) this situation concerns a dispute among members of a union which gave rise to the establishment of a new union.

402. The Committee notes that the Government's declarations and the allegations are contradictory with regard to the legality of the registration of the new union. The Committee notes also that the Government's reply does not deal with the alleged presence of representatives of the enterprise at the constituent meeting for the new union, neither does it deal with the alleged threat of dismissal against workers who did not join the new union. In these circumstances, the Committee requests the Government to send its comments concerning these allegations so that it may examine this complaint in full knowledge of the facts.

The Committee's recommendation

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

Noting that the Government's declarations and the allegations are contradictory with regard to the legality of the registration of the new union and that the Government's reply does not deal with the alleged presence of representatives of the enterprise at the constituent meeting for the new union, neither does it deal with the allegation concerning the threat of dismissal against workers who did not join the new union, the Committee requests the Government to send its comments concerning these allegations so that it may examine this complaint in full knowledge of the facts.

 

Case No. 1828

Definitive Report

Complaint against the Government of Venezuela
presented by
the Federation of Professional Pilots Trade Unions
of Venezuela (FESPAVEN)

Allegations: Use of subcontracting for anti-union purposes

404. The complaint is contained in a communication from the Federation of Professional Pilots Trade Unions of Venezuela (FESPAVEN) dated 5 April 1995. FESPAVEN sent additional information in a communication dated 27 May 1996.

405. The Government forwarded its observations concerning the allegations in a communication dated 20 May 1997.

406. At its June 1997 meeting, the Committee decided to ask the complainant for additional information so as to be able to pronounce itself on the admissibility of the complaint. However, no information has been received in this respect from the complainant.

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

A. The complainant's allegations

408. In its communications dated 5 April 1995 and 27 May 1996, the Federation of Professional Pilots Trade Unions of Venezuela (FESPAVEN) alleges that the legal regulation of labour relations in aviation enterprises such as Avensa, which employ pilots and flight attendants, is in accordance with the provisions of the Labour Organization Act. Individual contracts of employment are concluded between the staff and the airline, the latter also benefiting from collective labour agreements, made possible by trade unions which group together the various categories of workers. It states that Avensa set up an enterprise -- with the same shareholders and the same chairman as itself -- called Servivensa, as a type of subsidiary cunningly intended to sidestep labour rights. It is important to note that it was set up with a capital of Bs.100,000, which is unusual for an aviation enterprise; and even stranger still is the fact that it has no flight crews. To enable Servivensa to fly its planes, it always has to go via three commercial enterprises to have access to aviation workers.

409. The complainant explains that Servivensa (the enterprise set up by Avensa) obtains its flight crews from a company which supplies "manpower" called SAJG.SA; but SAJG.SA does not have any flight crews either, just a list of service providers (pilots and flight attendants). The aviation service providers are not aviation workers either; they are companies made up of pilots and flight attendants who are either shareholders or workers. This last point is key to understanding what is really happening: a pilot or flight attendant wanting to work with Servivensa (or to fly with this company's planes) must set up a company of his own. Thus, when the worker goes on board, he is being sent by a company -- his own -- to SAJG.SA, which in turn is sending him to Servivensa.

410. The complainant points out the consequences of this procedure. Servivensa claims that no employment relationship exists between itself and its flight personnel. Therefore it does not pay the benefits established by law nor are its staff affiliated to the Compulsory Social Security scheme, nor are there any restrictions on their hours of work. The workers are not considered to be workers but rather commercial enterprises, and in that capacity they can neither form unions nor bargain collectively. They must pay for their own uniforms and overnight stays, they have no insurance, etc. Their remuneration is on a piece-work basis. Thus, the prevailing collective agreement is replaced by individual commercial contracts and the Trade Union Association of Avensa Pilots (ASPA) and the Association of Unionized Flight Attendants of Avensa (ADAS) are eliminated.

411. In addition, considerable pressure has been brought to bear by Avensa representatives to set up an entity to replace the executive committee of ASPA and ADAS by persons of trust from Avensa, who will oversee the transition towards individual contracts. In this connection, a joint meeting was held on 15 February 1995 by ASPA and ADAS in the city of Caracas which was attended by the head of security of Avensa, together with a group of pilots, flight attendants and trusted staff, all transported in vehicles belonging to the employer. The employer's representative blatantly told everyone present that the enterprise would not negotiate on any point with the legitimately established executive committees of the unions and that it demanded the resignation of both committees. He then immediately left the meeting, forcing a group of union members to do likewise, threatening them with dismissal and discrimination if they supported the union.

412. According to the complainant, this anti-labour policy has already managed to neutralize the trade union movement through the support of an ASPA executive committee. It can now do whatever it likes without the authorities blinking an eye. ASPA's trade union executives have become employers by setting up an organization called ASPA Rent Crew, which shamelessly offers the services of a number of pilots, who they say will work without making any labour demands and outside the sphere of the unions and the protection of collective bargaining. In this case the trade union leaders are positioning themselves outside the scope of the Labour Organization Act. This type of management favours the employer.

413. The complainant describes the telling case of Captains Vicente Grisanti and Herrman Alexandre. Their flying hours have been reduced and they currently earn a monthly basic wage without the wage increments associated with actual flying as they have not agreed to the enterprise's approach and they oppose the deterioration in collective rights. Since the second fortnight in December 1995 to date, these pilots have not been able to exercise their trade union activity owing to the irregular situation prevailing in Avensa, and less still have been able to represent the ASPA, as the conditions are entirely inappropriate to do so. These pilots are members of FESPAVEN and they have insisted on the applicability of labour legislation and have refused to become limited companies.

414. Lastly, the complainant encloses a report from a special committee of the Chamber of Deputies, dated February 1995, relating to these issues where it is indicated in particular that in order to avoid the application of prevailing collective agreements, the Avensa-Servivensa Group has substituted the contracting of its workers by an employment relationship which consists of obliging the crews of an airline (Servivensa) to set up commercial companies. According to this report, the labour scheme applied at Servivensa is a step backwards in workers' conditions of employment, given that it substitutes collective contracting by individual agreements between the employer and the worker.

B. The Government's reply

415. In a communication of 20 May 1997, the Government sent a report from the legal adviser to the Ministry of Labour concerning the legal status of the individual employment contracts of the pilots and flight attendants of Servivensa. The report indicates that a practice exists of concluding contracts (civil or commercial) instead of contracts of employment or obliging workers to establish their own enterprises as a sham aimed at avoiding the application of the labour and social security laws. The labour law has effective mechanisms to eliminate such practices. The fact that Servivensa did not force the pilots and flight attendants to conclude the commercial contracts does not alter these conclusions. According to the report, the establishment of Servivensa -- a subsidiary of Avensa -- with the objective of undertaking the same activities as Servivensa, with the same routes and offering technical assistance on the flights, and the conclusion of sham commercial labour contracts, is an effective anti-union practice. In addition, the shareholders of Avensa, acting through Servivensa, guarantee the execution of the air transport of persons and goods, these activities not being covered by the labour and social security legislation. This procedure, as well as impeding the exercise of trade union activities in the enterprise, undermines effective collective bargaining and ignores the existence of the trade union within Avensa.

416. The Government states that an employers' representative, having been granted the right to speak, with the consent of ASPA and ADAS, was present at the trade union meeting referred to by FESPAVEN. In these circumstances, it could not be considered a question of employer interference, even if in the course of speaking he had made anti-union statements. In such a case, the union representatives could have, if they deemed it appropriate, refuted these comments.

C. The Committee's conclusions

417. The Committee observes that in this case the complainant has alleged: (1) that the employment contracts of pilots and flight crews of Avensa and the collective agreement have been replaced by individual contracts of a commercial nature, eliminating collective bargaining and the trade unions ASPA and ADAS; (2) that Avensa representatives interfered in trade union meetings to put pressure on union members to favour individual commercial contracts and a trade union executive committee in support of Avensa's goals; (3) that two pilots have suffered discrimination for not accepting individual contracts. The Committee notes the response of the Government.

418. The Committee recalls that the Trade Union Association of Avensa Pilots (ASPA) and the Association of Unionized Flight Attendants of Avensa (ADAS), members of the complainant (FESPAVEN), had presented the complaint in conjunction with FESPAVEN, but had subsequently withdrawn it as indicated in communications dated 8 February and 23 January 1996, respectively. This being the case, before deciding whether to examine the substance of the case, the Committee had considered that it was necessary to determine whether FESPAVEN still had a direct interest in the issues it had submitted to the Committee [see Procedure for the examination of complaints alleging violations of freedom of association, para. 34], now that its member organizations had withdrawn themselves from the proceeding, taking into account above all that FESPAVEN states that ASPA's executives "have become employers by setting up an organization called ASPA Rent Crew". The Committee observes that the Office had asked FESPAVEN in a communication dated 27 June 1997 to indicate whether ASPA and ADAS still belonged to it and to specify all the other trade union organizations which also belonged to it as well as the number of pilots and flight attendants it represented. The Committee also notes that the complainant still has not furnished this information after having been asked to do so nine months ago.

419. In these conditions, and although the Government in its reply recognizes the existence of anti-union practices and other practices contrary to collective bargaining, the Committee considers that since it has not received the additional information requested from the complainant so as to decide on the admissibility of the complaint, it is not in a position to examine this case further.

The Committee's recommendation

420. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that it is not in a position to examine this case further.

 

Case No. 1937

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

Complaint against the Government of Zimbabwe
presented by
the International Federation of Commercial, Clerical,
Professional and Technical Employees (FIET)

Allegations: Violations of the right to strike and anti-union dismissals

421. In communications dated 9 September 1997, the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) submitted a complaint of violations of freedom of association against the Government of Zimbabwe.

422. The Government sent its observations in a communication dated 5 November 1997.

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

A. The complainant's allegations

424. In its communication dated 9 September 1997, the complainant indicated that a strike was held by employees of the Standard Chartered Bank on 23 April 1997, called in response to the unilateral introduction of a new performance-related bonus scheme which was unacceptable to the employees. The issue of the bonus scheme was at the origin of an earlier dispute which occurred in 1995. At that time, a strike was called off when the local bank management agreed to an interim bonus scheme with the understanding that the terms and conditions of the final scheme would be subject to further discussions and agreement with FIET's affiliate union, the Zimbabwe Banks and Allied Workers' Union, ZIBAWU. According to the complainant, the latest scheme introduced by the Bank was done without sufficient negotiation and has been imposed on employees.

425. Following the commencement of the strike the Bank sought a disposal order from the Ministry of Public Service, Labour and Welfare. An order was made by the Ministry on 25 April and decreed that the workers must return to work and that the Bank could take disciplinary action against the striking workers.

426. According to the complainant, the Bank, thus armed, commenced a witch-hunt among those who took part in the industrial action and summarily dismissed 365 employees who took part in the strike, who were then informed that in order to return to work they must reapply for previous positions and accept temporary contracts with substantially lower conditions of employment and benefits than they were previously entitled to. Some of the workers were offered jobs in different locations, often a considerable distance from their homes. The complainant adds that the Bank's management in both Zimbabwe and London has repeatedly rejected attempts by FIET and ZIBAWU to resolve the dispute.

427. The Bank's actions have come as a result of the disposal order made by the Ministry which ruled against legitimate and reasonable strike action taken by the union and its members. The complainant concludes that the rulings of the Ministry have violated Conventions Nos. 87 and 98 and have impeded legitimate trade union activity.

B. The Government's reply

428. The Government has indicated in its communication dated 5 November 1997 that the complaint which is based on the disposal order issued in terms of the Labour Relations Act, Chapter 28:01, 1996, by the Ministry of the Public Service, Labour and Social Welfare of Zimbabwe, does not raise any issue which contravenes the provisions of Conventions Nos. 87 and 98. The parties, both the employers and the workers, merely exercised their rights as provided for in the country's laws.

429. The Government adds that the complaint has been brought before the ILO even before its finalization following the relevant procedures provided for in national legislation, since the matter is still before the High Court of Zimbabwe on a motion of appeal by the workers against the employer's action.

430. In terms of the country's labour laws, section 104 of the Labour Act allows workers, workers' committees and trade unions to go on strike to achieve lawful objectives, and section 108 gives immunity to workers and trade unions from a lawsuit. In other words, a trade union, workers' committee or worker cannot be sued for loss of profit or other losses caused by a legal strike nor can a worker be dismissed on the grounds that he or she was involved in a legal strike.

431. The Government indicates that on 2 April 1997, the Standard Chartered Bank employees gave notice to the employer that they would go on strike within 14 days if their grievances were not addressed to their satisfaction.

432. On 3 April 1997, the employer informed the Ministry and sought assistance to resolve the matter in terms of the law. Section 93 of the Labour Relations Act gives rights to any worker or employer who is involved in a dispute to bring a complaint to the notice of a labour officer. The labour officer in turn may conciliate on the matter or refer such matter to a voluntary arbitrator if the parties agree or to compulsory arbitration in the Labour Court of the country where no agreement has been reached on a voluntary arbitration.

433. According to the Government, four meetings were held between the parties under the chairmanship of a labour officer on 11, 16, 21 and 22 April 1997, with a view to finding a solution through conciliation. The four main workers' grievances were:

434. In the meetings, three of the four grievances were resolved through conciliation, but the matter regarding profit-sharing could not be resolved.

435. On 22 April 1997, the parties, having failed to agree on voluntary arbitration, agreed that the labour officer should refer the matter of the profit-sharing scheme to compulsory arbitration in the Labour Court and that the parties should prepare their position papers for a hearing in this court. On 23 April 1997 the employees of the Standard Chartered Bank went on strike.

436. A meeting was held at the Ministry of Labour on 24 April in which the Ministry was seeking representations from both the workers and employers as to why a disposal order to stop the strike should not be issued in view of agreements which had been reached to send the matter to compulsory arbitration to the Labour Court.

437. On the following day, the officer, having listened to the representation by the parties, issued a disposal order directing that, since the matter was now due for hearing in the Labour Court and an early hearing date had been secured with the court: (1) workers were to terminate their industrial action; and (2) the employer could take disciplinary action in terms of the company code against any worker who failed to comply with the order.

438. On 26 April 1997, the Standard Chartered Bank sent to each worker a message attaching the disposal order and requesting the workers to report back to work by 28 April, failing which, disciplinary action would be taken.

439. The workers challenged the order in the High Court claiming that the matter was not properly brought before the Labour Court.

440. The High Court ruled that the labour officer should "by not later than 10 a.m. on 2 May 1997 deliver to legal practitioners of the applicant and respondent a statement of the issues referred to arbitration". This was done.

441. In the meantime, management was proceeding with hearings in terms of the company's code of conduct on those employees who did not return to work on 28 April and a decision to dismiss them was made on 3 May 1997.

442. The employees challenged the employer's decision to dismiss them in the High Court on 12 May, and the matter is still pending.

443. Furthermore, the Government states that the Labour Court issued the following judgement as to the issue regarding profit-sharing: "The applicant or the workers were not entitled to any additional bonus payments other than those already made in respect of the financial year ending 31 December 1996." Although, in terms of the law, the workers could have appealed this decision to the Supreme Court, they did not.

444. The Government therefore reiterates its opinion that there was no violation of either Convention No. 87 or Convention No. 98.

C. The Committee's conclusions

445. The Committee notes that the allegations in this case concern the referral of an industrial dispute to compulsory arbitration by the Ministry of Public Services, Labour and Welfare (hereinafter, Ministry of Labour) and the issuance of a disposal order terminating a strike and permitting disciplinary action on the part of the employer in respect of any workers remaining on strike, which resulted in mass dismissals at the Standard Chartered Bank.

446. The Committee notes that, according to the Government, there is no violation of freedom of association in this case as the employers and the workers were merely exercising their rights as provided for in the national legislation. The Government adds that an appeal by the workers against the employer's actions is still pending before the High Court. In this respect, the Committee first wishes to recall that, although the use of internal legal procedures is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. [See Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, Annex I, para. 33.]

447. As concerns the substance of the allegations, the Committee notes that the Zimbabwe Banks and Allied Workers' Union gave strike notification on 2 April 1997. On the following day, the Standard Chartered Bank (hereinafter, the Bank) requested the Ministry of Labour to issue an order calling upon the parties to show cause why a disposal order should not be made (section 106 of the 1996 revised edition of the Labour Relations Act). Conciliation meetings aimed at resolving the conflict were held from 11 to 22 April 1997. While certain grievances were resolved, the matter of the company profit-sharing scheme remained unsettled. According to the Government, the parties failed to agree to voluntary arbitration, but agreed that the labour officer should refer the matter to compulsory arbitration in the Labour Court. The Committee notes, however, that there is no indication in the complaint that the union agreed to compulsory arbitration, and in any case, section 98 of the Labour Relations Act empowers the labour relations officer to refer a dispute to arbitration irrespective of the views of the parties.

448. The strike began on 23 April 1997 and the Bank immediately sought a disposal order from the Ministry which was subsequently issued on 25 April 1997. Under section 107 of the Labour Relations Act, the Minister has the authority to issue a disposal order directing that collective job action be terminated, postponed or suspended or reduced in scope and the ministry official may refer the dispute for resolution to another authority, in accordance with the terms of the Act concerning the determination of labour disputes. Under section 107(5)(a), the Minister has the authority to provide for the lay-off or suspension, with or without pay, of specified employees or categories of employees engaged in an unlawful collective job action, for such a period as may be specified.

449. The disposal order issued on 25 April 1997 provided that workers should report back to work by noon that same day, that they should not be paid for the period on strike, that the employer may take any disciplinary action he deems fit against any employee who fails to comply with the disposal order and that the dispute shall proceed to compulsory arbitration in terms of sections 98, 99 and 100 of the Labour Relations Act of 1996. Subsequently, the Bank summarily dismissed 365 employees for absence from work and, according to the complainant, informed the striking workers that, in order to return to work, they would have to reapply for previous positions and accept temporary contracts with substantially lower conditions of employment and benefits. (The complainant has attached to its complaint sample dismissal letters and the terms for re-employing dismissed workers.)

450. Firstly, the Committee notes that there were apparently two occasions when the matter of the company profit-sharing scheme was referred to compulsory arbitration. In the first place, the Government indicates that, upon the failure to resolve this grievance through conciliation, the labour officer decided to refer the matter to compulsory arbitration. Secondly, the disposal order issued on 25 April 1997 provided that the strike be terminated and that the matter of the profit-sharing scheme be referred to compulsory arbitration. In this respect, the Committee has stressed that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term or in cases of acute national crisis. [See Digest, op. cit., para. 517.] The Committee has already considered that banking does not constitute an essential service in the strict sense of the term. [See Digest, op. cit., para. 545.] Regretting that sections 98, 99, 100, 106 and 107 of the Labour Relations Act grant the labour authorities the power to refer disputes to compulsory arbitration whenever it considers this appropriate, the Committee urges the Government to amend these sections so as to ensure that compulsory arbitration may only be imposed with respect to essential service and in cases of acute national crisis and requests the Government to keep it informed of the progress made in this regard.

451. Secondly, as concerns the mass dismissal of striking workers at the Bank, the Committee notes the Government's indication that the workers' challenge against these dismissals is still pending before the High Court. The Committee must, however, note with regret that these dismissals came as a result of the permission granted to the employer in the disposal order to take any disciplinary action it considered appropriate. It must recall that the dismissal of workers because of a legitimate strike constitutes discrimination in employment. [See Digest, op. cit., para. 704.] The Committee therefore requests the Government to take the necessary measures to ensure that those workers who were dismissed as a result of their participation in the Standard Chartered Bank strike of April 1997 are reinstated in their jobs and are entitled to the same conditions of employment and benefits as were enjoyed prior to the strike. Furthermore, given that section 107(5) of the Labour Relations Act grants broad authority when issuing disposal orders to include the lay-off or suspension for a specified period of specified employees engaged in unlawful or lawful collective job action, as well as the dismissal of specified employees engaged in unlawful collective job action, the Committee requests the Government to take the necessary measures to amend this provision so as to ensure that workers are not discriminated against in their employment for exercising legitimate trade union activity. The Committee requests the Government to keep it informed of the progress made both with respect to the reinstatement of the dismissed workers at the Standard Chartered Bank and the amendment of section 107(5) of the Industrial Relations Act.

The Committee's recommendations

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

(a) Regretting that sections 98, 99, 100, 106 and 107 of the Labour Relations Act as revised in 1996 grants the labour authorities the power to refer disputes to compulsory arbitration whenever it considers this appropriate, the Committee urges the Government to amend these sections so as to ensure that compulsory arbitration may only be imposed with respect to essential services and in cases of acute national crisis. It requests the Government to keep it informed of the progress made in this regard.

(b) The Committee requests the Government to take the necessary measures to ensure that those workers who were dismissed as a result of their participation in the Standard Chartered Bank strike of April 1997 are reinstated in their jobs and are entitled to the same conditions of employment and benefits as were enjoyed prior to the strike and to take the necessary measures to amend section 107(5) of the Labour Relations Act so as to ensure that workers are not discriminated against in their employment for exercising legitimate trade union activity. The Committee requests the Government to keep it informed of the progress made in this regard.

Geneva, 19 March 1998.

(Signed) Max Rood,
Chairman.

Points for decision:

 1. Dates inside parentheses refer to the dates of issuance of the registration certificates.


Updated by VC. Approved by NdW. Last update: 26 January 2000.

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