GB.272/5 - Governing Body

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 28 and 29 May and 5 June 1998, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, French and Panamanian nationalities were not present during the examination of the cases relating to Argentina (Cases Nos. 1867, 1887 and 1939) France/Guiana (Case No. 1929) and Panama (Cases Nos. 1931 and 1932), respectively.

3. Currently, there are 51 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 19 cases on the merits, reaching definitive conclusions in nine cases and interim conclusions in 10 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1958 (Denmark), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1962 (Colombia), 1963 (Australia), 1964 (Colombia), 1966 (Costa Rica), 1967 (Panama), and 1968 (Spain) because it is awaiting information and observations from the governments concerned. All these cases relate to complaints or representations submitted since the last meeting of the Committee. In Case No. 1959 (United Kingdom/Bermuda), the Government stated that information had been requested from the authorities in Bermuda and that a complete reply would be furnished as soon as it was received by the Government. In Case No. 1963 (Australia), the Government announced that its observations will be sent.

Observations requested from governments

5. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1812 (Venezuela), 1851 (Djibouti), 1865 (Republic of Korea), 1869 (Latvia), 1922 (Djibouti), 1944 (Peru), 1947 (Argentina), 1948 (Colombia), 1951 (Canada/Ontario), 1953 (Argentina) and 1955 (Colombia). In Case No. 1865 (Republic of Korea), the Government announced that its observations will be sent.

Observations requested from complainants

6. In Case No. 1949 (Bahrain), the Committee is awaiting the comments of the complainant organizations. The Committee requests these organizations to send the observations and information requested without delay.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1927 (Mexico), and 1965 (Panama), the governments have sent partial information on the allegations made. The Committee requests these governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1787 (Colombia), 1934 (Cambodia), 1942 (China/ Hong Kong Special Administrative Region), 1950 (Denmark), 1954 (Côte d'Ivoire) and 1960 (Guatemala), the Committee has very recently received the Government's observations and intends to examine the substance of this case at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1873 (Barbados) and 1956 (Guinea-Bissau), the Committee observes that, despite the time which has elapsed since the submission of the complaint or the last examination of the case, it has not received the observations of 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.

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: Canada/Manitoba (Case No. 1928), Canada/Ontario (Case No. 1943), Indonesia (Case No. 1773), Panama (Case No. 1931) and Peru (Case No. 1906).

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

Case No. 1837 (Argentina)

11. At its meeting in March 1997 [see 306th Report, paras. 16-18], the Committee last examined this case concerning acts of violence that occurred during demonstrations and strikes organized in the Provinces of Tierra del Fuego, Corrientes and San Juan, and in particular the death of the worker Víctor Choque, the injuries sustained by unionists Juan Roberto Vera and Alejandro Vásques, and the assault and denial of freedom of which trade union leaders Eloy Camus and Juan González, were victims. On that occasion, the Committee requested the Government to keep it informed of the results of the judicial inquiries under way concerning the detention of Mr. Juan González, the homicide of Víctor Choque (the Government informed the Committee that the judicial authorities had sentenced a police officer to nine years' imprisonment as the person responsible for his death, but that the verdict had been appealed), and the abduction of Mr. Eloy Camus. The Committee had also requested the Government to keep it informed of the judicial inquiries under way concerning the injuries sustained by trade unionists Juan Roberto Vera and Alejandro Vásques, as well as the legal proceedings brought by the police against the trade union leader Juan González.

12. In a communication dated 23 March 1998, the Government sent a copy of the ruling handed down by the judicial authorities of the Province of Tierra del Fuego, upholding the verdict sentencing a police officer to nine years' imprisonment as the person materially and criminally responsible for the homicide of Mr. Víctor Choque. The Committee takes note of this information and requests the Government to keep it informed of the results of the other judicial inquiries mentioned above.

Case No. 1509 (Brazil)

13. The Committee examined this case concerning the murder of the trade unionist Valdicio Barbosa dos Santos at its meeting of November 1997 [see 308th Report, para. 281]. On that occasion it noted that the Government had stated that there was sufficient circumstantial evidence to show that Mr. Marçal da Rocha -- who was at large -- was the actual perpetrator of the homicide and that Mr. Romualdo Eustaquio Luz Farias was still in detention and was being tried. In a communication of 9 April 1998, the Government states that: (1) the Public Ministry of the State presented its final allegations and requested the preventive detention of the accused persons; and (2) after an analysis of the documents of the proceedings, the Public Ministry concluded that other persons are involved in the homicide in addition to the accused and therefore ordered a new police investigation of the case. The Committee notes this information and requests the Government to inform it of the final outcome of the judicial proceedings under way, and of the new police inquiry to which reference is made.

Cases Nos. 1850 and 1870 (Congo)

14. The Government reports in its communication of 20 March 1998 that the situation of war which has just arisen in the country and the serious disruptions to which it has given rise have not allowed the matters pending before the Committee to be dealt with in the normal manner. The Government hopes to be able to provide information in this connection in the near future. The Committee takes note of this information and expresses the hope that the situation in the country improves and will enable a solution to be found to the matters pending. The Committee requests the Government to keep it informed in this respect.

Case No. 1938 (Croatia)

15. The Committee examined this case, concerning allegations of interference in trade union activities and with trade union assets, at its March 1998 meeting [see 309th Report, paras. 161 to 185]. The Committee had, inter alia, requested the Government to extend the period of negotiation regarding the division of immovable assets formerly owned by trade unions, if no agreement was reached within six months (the period set out in the Act on Associations). The Committee had asked to be kept informed in this regard.

16. In a communication dated 13 May 1998, the Government stresses that the property at issue is considerable, comprising more than the property owned by the trade unions before the Second World War. The Government also states that while the trade unions have not reached an agreement with respect to the division of trade union assets, the Government has still not proposed to the Parliament the criteria for such division, in an attempt to permit the trade unions to reach an agreement.

17. The Committee notes that the negotiation period has been extended, and recalls that the extension should be such as to ensure that the parties concerned are given a reasonable opportunity to reach an agreement. The Committee repeats its request that the Government 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 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 recalls its request that the Government forward to it a copy of the decision of the Constitutional Court as soon as it is handed down. Finally, the Committee again requests to be kept informed regarding all of the above-noted matters.

Case No. 1908 (Ethiopia)

18. At its meeting in November 1997, the Committee urged the Government to ensure that an independent investigation be carried out immediately into:

(i) the alleged attack against, and subsequent occupation of, the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP) on 4 November 1996; and
(ii) the alleged physical assault on Mr. Mulatu Gurmu, the FCTP Treasurer, on the same day, so as to identify and punish the guilty parties.

The Committee further requested the Government to institute an independent judicial inquiry into the allegation that irregular procedures were followed in nominating the new leaders of the FCTP. Finally, the Committee requested the Government to send a copy of the Federal High Court's decision confirming the cancellation of the registration of the former Confederation of Ethiopian Trade Unions (CETU) by the Ministry of Labour and Social Affairs [see 308th Report, para. 362].

19. As concerns the institution of an independent investigation, the Government indicates in a communication dated 23 February 1998 that it consulted all concerned bodies including the Federation of Commercial Trade and Printing (FCTP) in order to learn the truth of the matter. It adds that it understands that there is no concrete evidence which can justify the allegations in this case. On the contrary, the Government found that the allegations had been a sheer fabrication and disinformation of the former CETU and former FCTP leaders. The Government adds that the newly democratically elected FCTP leadership was perplexed when asked to nominate their representative to the independent investigation body and stated that there were no grounds for any of the allegations. Therefore, the Government indicates that it was unable to institute an independent investigation because all concerned bodies, including the FCTP, refused the proposal adding that, if such a crime had occurred, the victim could have brought the case before the court. Finally, the Government sent the Federal High Court's decision with respect to the cancellation of the registration of the former CETU.

20. The Committee notes this information. The Committee must recall, however, that it has already requested the Government on two occasions to carry out an independent investigation into the attack and occupation of the FCTP enterprises and the physical assault of the FCTP treasurer, Mr. Gurmu [see 306th Report, para. 458, and 308th Report, para. 359]. The Committee deeply regrets the Government's decision not to undertake such an investigation on the basis of the views expressed by the new FCTP leadership which are precisely what gave rise to the original complaints made in this case by the former leadership. The Committee requested the Government to institute an independent investigation precisely so that it might carry out full inquiries and establish the true facts of the case. The Committee would therefore once again urge the Government immediately to undertake an independent investigation into these matters. Furthermore, as concerns the new leadership of the FCTP, in its previous conclusions the Committee indicated that serious doubts appeared to surround the regularity of the procedures followed leading to the nomination of the new FCTP leaders and recalled the principle that, in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious. The Committee deeply regrets that the complaint raised by the former FCTP leadership in this regard has not been referred to the judicial authorities for an impartial determination. Moreover, the Committee considers that the absence of any independent review and impartial resolution to this question is likely to perpetuate the doubts about the legitimacy of the present leadership in a manner unfavourable to all parties concerned. The Committee therefore urges the Government, in the interests of all parties concerned, to institute an independent judicial inquiry into the allegation of the existence of irregular procedures for the nomination of the new leaders of the FCTP and to keep it informed of the progress made in this regard.

21. The Committee also notes the Federal High Court's decision confirming the cancellation of the registration of the former CETU. It notes from the judgement that the reasons given by the Ministry of Labour for the cancellation were that the Confederation was exercising its power beyond its jurisdiction, that it failed to work towards its objectives of, among others, strengthening the unity of the federations and that it did not rectify the matter when the Ministry advised them to do so. It appears from the judgement that six out of the nine member federations requested the Ministry to dissolve the Confederation because it was creating dissension among its members. A number of other broad allegations were made in the briefs before the Court against the former CETU. The judgement indicates that there is a procedure in the CETU constitution for dissolving the Confederation but this procedure was not used. Instead the Ministry was requested to cancel the registration of the CETU under the powers vested to it in section 120 of the Labour Proclamation. The relevant sub-section of section 120 provides broad authority to the Minister to cancel the registration of an organization where the organization is found to have engaged in activities which are prohibited under this Proclamation or performed acts which are contrary to its purposes and constitution and it is not willing to cease or remedy or eliminate them. The High Court judgement appears only to verify whether the Minister indeed had the power to dissolve the Confederation but does not actually review the allegations made against it which appear only generally in the judgement. Noting that the legislation on this point is contrary to freedom of association principles, the Committee requests the Government to amend it with a view to ensuring the full respect of these principles.

22. From the evidence available, this matter clearly appears to be related to internal dissensions within the CETU. Generally speaking, the Committee is not competent to make recommendations on internal dissensions, so long as the Government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 963]. In this case, however, cancellation of the former CETU by the administrative authority would appear to constitute intervention in the normal functioning of the organization, particularly given the existence of procedures for dissolution in the Confederation's constitution. Furthermore, the Committee would recall that, in cases of dissolution, judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87. In effect, if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee if the judges hearing such an appeal can only ensure that the legislation has been correctly applied [see Digest, op. cit., para. 683]. In the light of the above, the Committee requests the Government to undertake an independent investigation to verify the allegations made against the former CETU and to determine whether the administrative decision to cancel the organization did not constitute unjustifiable interference in trade union affairs contrary to the principles of freedom of association and, if so, to take the necessary measures to ensure the reinstatement of the former CETU executive. The Government is requested to keep the Committee informed in this regard.

Case No. 1876 (Guatemala)

23. At its March 1998 meeting, the Committee asked the Government to keep it informed of developments in the procedure against the Mariposa S.A. bottling enterprise relating to acts of anti-union discrimination and requested the Government to take measures for the reinstatement of those dismissed in their jobs if it were confirmed that they had been dismissed for their trade union activities [see 309th Report, para. 261(c)].

24. In a communication dated 23 March 1998, the Government sent a copy of the judgements of first and second instance relating to this matter. The latter judgement confirms the lower court's decision to fine the enterprise "for having contravened the laws of labour and social welfare by not reinstating in their jobs" two workers who had been dismissed without legal cause.

25. The Committee notes this information but observes that in the facts outlined in the judgement no mention is made of the persons concerned being trade unionists or that they had been subjected to anti-union measures. Given this situation, the Committee will not pursue its examination of this question.

26. Nevertheless, the Committee regrets that no observations were provided on the other pending questions relating to this case, and it therefore repeats the recommendations it formulated in this connection at its March 1998 meeting [see 309th Report, paras. 261(b), (c) and (d)].

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.
As regards the allegations relating to acts of discrimination (International Textile Corporation enterprise, El Salto farm, 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.
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. 1877 (Morocco)

27. At its session in June 1997, having examined the allegations concerning the anti-union measures taken by the management of SOMADIR factories in Casablanca and El Jadidale against workers, and in particular against union leaders and staff representatives, between 1994 and 1996, the Committee formulated the following recommendations [see 307th Report, paragraph 404]:

Recalling that under Convention No. 98 workers shall enjoy adequate protection against acts of anti-union discrimination, the Committee requests the Government to take all necessary measures to ensure that the workers who were dismissed or suspended due to their legitimate trade union activities, namely Messrs. Mohammed Horane, Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Louinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia, Mohammed Boukhima, Bouchaib Moundir, Hassan Raoui, Abderrahim Oussamam, Rachid Labed, El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha be immediately reinstated in their jobs, if they so wish. The Committee requests the Government to take all necessary measures so that the SOMADIR enterprise does not have recourse to anti-union measures and requests the Government to keep it informed in this connection.
Noting that the dispute between the workers and the management of the SOMADIR enterprise was submitted to the Consultative Council for the Promotion of Social Dialogue, the Committee requests the Government to forward to it a copy of the decision as soon as it is handed down.

28. In a communication of 27 March 1998, the Government states that, as regards the collective dispute between the management and staff of SOMADIR, following the normal resumption of activities within the company from 11 July onwards, the parties to the dispute had started negotiations under the terms of an agreement providing for the reinstatement of 33 employees, including four staff representatives, and the payment of compensation to other dismissed workers in accordance with national legislation in force. However, the dismissed workers, believing that their rights were infringed, rejected the agreement and chose instead to settle their dispute with the company by judicial means. The parties have accordingly initiated legal action challenging the dismissals before the competent judicial bodies, which to date have given no ruling on the matter. The text of any such rulings will be communicated to the ILO as soon as possible.

29. The Committee requests the Government to keep it informed of developments with regard to the judicial action taken in this matter.

Case No. 1894 (Mauritania)

30. At its November 1997 meeting, the Committee urged the Government to take all the necessary measures to ensure that the Free Confederation of Workers of Mauritania (CLTM) and the Mauritanian Transport Workers' Federation (FTM) obtained legal recognition in the very near future so that they might defend and promote the interests of their members [see 308th Report, paras. 526-540].

31. Since then, the complainants indicated in a communication dated 8 March 1998 that the secretary-general and the workers' education officer of the CLTM, Messrs. Samory Ould Beye and Sid' Amed Ould Salek, had been arrested on 5 February 1998 at 2 p.m., and had since been held under house arrest.

32. At its meeting in March 1998, the Committee insisted that the Government take steps to ensure that both complainant organizations obtain legal recognition in the very near future and that the Government send its observations concerning the alleged arrest of their trade union leaders.

33. In a communication dated 5 May 1998, the Government states that, after analysing the by-laws of the Free Confederation of Workers of Mauritania (CLTM), and pursuant to section 9 of book III of the Labour Code, the Public Prosecutor of the Republic certified that the by-laws were legal. The Government adds that the Confederation has thus legally existed since 30 April 1998. In a communication of 11 May 1998, the Government states also that the trade union leaders referred to in the complaint have all been released and are entitled to full freedom of movement.

34. The Committee notes this information with interest. It nonetheless requests the Government to do everything possible to permit the other complainant organization, the Transport Workers' Federation (FTM), to obtain legal recognition as quickly as possible, as Article 2 of Convention No. 87 stipulates that workers shall have the right, without distinction whatsoever, to establish and join organizations of their own choosing. It requests the Government to keep it informed of any measures taken in this regard.

Case No. 1907 (Mexico)

35. At its meeting in June 1997, the Committee had left pending the question regarding the reinstatement of workers who had participated in a strike in the transport sector in 1996. The Committee thus formulated the following recommendations [see 307th Report of the Committee, para. 417]:

The Committee urges the Government to take all necessary steps to ensure that the workers of Autotransportes Tres Estrella de Oro SA de CV and Corsarios del Bajío SA de CV who took part in the strike and who did not return to work in a 24-hour deadline are reinstated in their jobs. If the Government is unable to abide by this recommendation, the Committee requests it to keep it informed of the legal difficulties which prevent it from reinstating the workers in their jobs.

36. In its communications of 17 November 1997 and 10 March 1998, the Government states that to date it has not been possible to reinstate the workers since the enterprises had obtained amparo (enforcement of their constitutional rights) by means of a review. The Government explains that this course of action is the final resort against actions which a party may consider to be in violation of constitutional safeguards. However, the Government states that many of the strikers appealed to the National Trade Union of Transport and Allied Workers to resume work in various enterprises of the group.

37. The Committee takes note of this information but regrets that not all the strikers have been reinstated in their jobs. However, given that the judicial authority has ruled in favour of the enterprises and the allegations date from 1996, it does not appear to be possible to enforce the reinstatement of those workers who remain out of work under existing legislation. The Committee therefore requests the Government to take steps to bring the parties concerned together with a view to achieving the reinstatement in their posts of as many of the dismissed workers as possible.

Case No. 1796 (Peru)

38. At its meeting of November 1997, the Committee requested the Government to keep it informed of the decision handed down by the Judiciary Branch concerning the dismissal of trade union officers Leonardo Cruzalegui, Delfín Quispe Saavedra, Dionisio Mejía Ramos (of the Iron and Steel Enterprise of Peru) and Iván Vildoso (Electrolima Enterprise, SA) [see 308th Report, para. 58]. As regards Mr. Vildoso, the complainant sent additional information according to which the Supreme Court revoked the decision handed down by the lower court thereby excluding his reinstatement in his job. Consequently, this trade union leader has presented a final appeal.

39. In its communication of 16 February 1998, the Government provides detailed information on the progress of the various appeals lodged by the officials in question. According to the information from the Government, the legal proceedings taken by Mr. Leonardo Cruzalegui have concluded and confirmed that the request for an annulment of the dismissal was without foundation, in view of the fact that the dismissal was due to a retrenchment, noted by the labour inspector, and took place during the course of a privatization scheme. As regards the other three trade union officials, no final ruling has yet been handed down due to the successive appeals which have been lodged.

40. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the proceedings concerning the trade union leaders Delfín Quispe Saavedra, Dionisio Mejía Ramos and Iván Arias Vildoso.

Case No. 1813 (Peru)

41. At its meeting of November 1997, the Committee awaited further information on two cases involving legal proceedings on which it had requested to be kept informed of the outcome: (1) proceedings against several workers charged with the offence of disturbing the peace (Félix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz); and (2) charges concerning the death of two trade unionists (Alipio Chueca de la Cruz and Juán Marcos Donayre Cisneros) [see 308th Report, paras. 59 and 60].

42. In its communication of 17 February 1998, the Government states that as regards the workers charged with the offence of disturbing the peace following incidents which occurred in the offices of the Corporation for the Development of El Callao (CORDECALLAO), the judicial authorities have closed the case on the ground of the extinction of the right of criminal action due to the statute of limitations. The Committee takes note of this information.

43. As regards the proceedings concerning the death of the trade unionists Alipio Chueca de la Cruz and Juán Marco Donayre Cisneros as a result of the shots fired by CORDECALLAO security staff, the Government states that three persons have been charged with the offence of causing grievous bodily harm resulting in the death of the trade unionists and with the illegal possession of firearms. The Government adds that the proceedings have not been concluded and that it will keep the Committee informed in this respect. The Committee requests the Government to inform it of the outcome of these proceedings.

Case No. 1878 (Peru)

44. In its previous examination of the case, the Committee requested the Government to provide its comments regarding certain observations of the complainant organization (the Single Trade Union of Technicians and Specialized Auxiliaries of the Peruvian Social Security Institute -- SUTAEIPSS) formulated in its communication of 12 September 1997 [see 308th Report, para. 64]. Subsequently, that organization sent new communications dated 10 November 1997, 24 and 30 January and 14 February 1998 (in the last of these, the complainant requested the Committee to confine itself to giving an opinion on matters relating to collective bargaining).

45. SUTAEIPSS indicates that its 1997 claims have not been settled and the Government has awarded a 16 per cent pay rise to workers at the Peruvian Social Security Institute; this pay rise was implemented as a result of the Union's struggle. However, the Institute has not set up the joint committee and has chosen to grant the pay increase separately from the 1997 claims. The Union adds that it has transmitted its list of claims for 1998 to the Institute and it is to be expected that the situation of 1997 will be repeated. The complainant hopes that public servants will be guaranteed the right to engage in collective bargaining as part of the current reform of the Act concerning collective labour relations. The complainant also notes that there has been an improvement in relations between the Union and the Institute and that other issues have been resolved.

46. In its communications of 29 December 1997 and 10 March 1998, the Government states that the delay in the collective negotiations was caused by the complainant. According to the Government, it was these negotiations that resulted in the 16 per cent pay rise for workers at the Institute. Furthermore, national legislation guarantees the rights set out in Conventions Nos. 87 and 151.

47. The Committee takes note of the complainant's allegations and the Government's statements. It notes with interest that the dialogue and talks between SUTAEIPSS and the Peruvian Social Security Institute made implementation of the 16 per cent pay rise possible and that the Union emphasizes the improvement that has taken place in its relations with the Institute. However, the Committee notes that the talks between the parties appear to have arisen informally, that the complainant's concern at the moment is the establishment of the joint committee and to ensure that current reforms to the Act concerning collective labour relations create a legal framework in which collective bargaining between the parties can take place satisfactorily. Under these circumstances, the Committee requests the Government to examine the reasons for which the joint committee has still not been set up and to take measures to promote collective bargaining for 1998 at the Institute.

Case No. 1926 (Peru)

48. The Committee examined this case at its November 1997 meeting [see 308th Report, paras. 610-634], when it requested the Government to: (i) take the necessary steps to recognize the SUTREL (Unified Trade Union of Electricity Workers of Lima and Callao) trade union sector's right to represent its members and bargain collectively on conditions of employment, at least on behalf of its own members; (ii) carry out an inquiry into the allegation of the General Confederation of Workers of Peru (CGTP) concerning the anti-union nature of the dismissal of officers of several trade union organizations; (iii) ensure that, where it is necessary to implement the process of collective termination of employment for objective reasons, negotiations are held between the enterprises concerned and the trade union organizations; and (iv) take the appropriate measures to guarantee the full application of the Convention as regards the allegations of the CGTP concerning threats of dismissal received by trade union officers.

49. In a communication of 7 May 1998, the Government states that the administrative labour authority declared invalid the claims submitted by the SUTREL trade union section at the Luz del Sur Servicios S.A. enterprise, as they concerned a branch trade union which represented workers of various allied enterprises, and that a membership of at least 100 members was required in order for the union to be established and to exist. The Government further adds that a collective agreement was already signed in January 1997 between that enterprise and the majority of its workers. In this respect, the Committee first would recall that the requirement of a minimum membership of 100 workers in order to establish a branch trade union has been criticized by the Committee of Experts, which considers the number excessive. Furthermore, the Committee once again recalls that direct negotiation between the enterprise and its workers, circumventing representative organizations when they exist, can in some cases be detrimental to the principle under which collective bargaining between employers and workers' organizations should be encouraged and fostered. It thus once again requests the Government to take the necessary steps to recognize the SUTREL trade union sector's right to represent its members and to bargain collectively on conditions of employment, at least on behalf of its own members.

50. As regards the allegations of the CGTP concerning the anti-trade union dismissal of the officers of several trade union organizations, the Committee notes that the Government has committed itself to conducting an investigation into this matter and will inform the Committee as soon as possible of its findings. The Committee thus awaits the findings of the investigation.

51. As regards the Committee's request that negotiations be held between the enterprises concerned and the trade union organizations where it is necessary to implement the process of collective termination of employment for objective reasons, the Committee notes with interest the Government's statement that section 48 of Presidential Decree No. 003-97-TR stipulates that in such cases the enterprise is obliged to negotiate concerning the conditions of termination of employment contracts or other steps to avoid or limit termination of employment. The Government adds that it would be difficult for the employer to use the process of collective termination for anti-union purposes, as the administrative labour authority takes part in the negotiations along with the trade union.

52. As regards the allegations of the CGTP concerning threats of dismissal of trade union officials, the Committee takes note of the Government's statement that the existence of such threats could not be proved, and that no reports thereof have been submitted to the competent national bodies.

Case No. 1785 (Poland)

53. In November 1997, the Committee had requested the Government to comply with its previous recommendation at an early date concerning the final and equitable redistribution of trade union assets between the two trade union confederations and to keep it informed in this regard [see 308th Report, para. 71].

54. In a communication dated 9 March 1998, the Government states that trade union organizations made 481 applications by 31 January 1998 in accordance with procedures defined by new provisions.

55. By 31 January 1998 the Social Revindication Commission issued pronouncements obligating the State Treasury to pay in cash or to compensate through non-monetary measures defined by acts the total amount of 57,540,505.78 PLN. Obligations of the State Treasury towards organizational units of the NSZZ "Solidarno" amount to 56,098,873.06 PLN. The remaining sum of money of 218,661.34 PLN is compensation for overpayments to trade unions obligated by virtue of former pronouncements to return the assets.

56. Cash compensations -- together with calculated statutory interests for delay -- will be, beginning from September 1998, made by voivods representing the State Treasury from the resources of target reserves of the State, allocated to them by the Minister of Finance.

57. The Government adds that realization of non-cash compensations will be carried out after the issuance by the Cabinet of an appropriate executive regulation, provided for in section 3(2), paragraph 3, of the amended Revindication Act. Works related to preparation of this regulation are being carried out.

58. It is beyond doubt that the question of non-monetary obligations of the State Treasury should be regulated in the best possible way through legislative provisions. Therefore the new Government is going to present in the Parliament, without an unreasonable delay, a draft amendment of section 3(2), paragraph 1, of the Revindication Act, as well as simultaneously preparing an executive Cabinet regulation, adjusted to the changes projected.

59. The Government states that the Minister of Labour and Social Policy issued a regulation of 27 June 1997 defining the list of immovables of the former Trade Union Association which are the property of the NSZZ "Solidarno" and the OPZZ. On the strength of this regulation the NSZZ "Solidarno" was assigned one immovable and the OPZZ -- three immovables. The Minister of Labour and Social Policy issued another regulation on 26 August 1997, according to which the NSZZ "Solidarno" was assigned another three immovables, and the OPZZ another six immovables.

60. The Minister of Labour and Social Policy also made a settlement following the division of the immovables of the former Trade Union Association to the effect that the OPZZ was obligated to return to the NSZZ "Solidarno", as a settlement, an amount of 331 PLN, because the total monetary value of the immovables listed in both ordinances, as assigned to the OPZZ, is higher than the total sum of monetary value of the immovables assigned to the NSZZ "Solidarno", while section 45 of the Trade Union Act stipulates that the immovables be divided in equal parts between the OPZZ and the NSZZ "Solidarno".

61. The NSZZ "Solidarno" expressed a critical attitude towards both the above-mentioned regulations of the Minister of Labour and Social Policy, of 27 June 1997 and of 26 August 1997, as well as the decision of 5 September 1997 concerning the settlement following the division of immovables of the former Trade Union Association.

62. The NSZZ "Solidarno" raised objections towards both regulations as being legally incorrect, as there was no basis for issuing them.

63. Consequently, the NSZZ "Solidarno" questioned also the decision of the Minister of Labour and Social Policy of 5 September 1997 concerning the settlement following division, since the real value of the immovables, adopted in this decision -- identical with the value stated in the regulations -- should be subject to another evaluation. In examining these objectives, the Supreme Chamber of Control stated that there was no need to conduct another pricing of the above listed immovables. However, the Chamber has not directly addressed the doubt, raised by the NSZZ "Solidarno", whether the Stock-Taking Commission took into account all the immovables which according to the Act should be subject to division. Neither did the Chamber address the objection that the Commission had not prepared a final listing of the catalogued buildings. However, the protocol of examination of the Supreme Chamber of Control presented -- as a subject of examination -- critical remarks, doubts and objections concerning the respective stages of work of the Stock-Taking Commission.

64. Due to the legal complexity of the question of the division of assets of the former Trade Union Association, the Government states that the Minister of Labour and Social Policy is not ready to express his opinion now. It will inform the Committee when the Minister of Labour and Social Policy takes a final decision.

65. The Committee notes with interest that decisions concerning cash compensation to trade union organizations will be beginning from September 1998 and that some assignations of immovables to NSZZ "Solidarno" and OPZZ have been made. The Committee notes the complexity of the question of divisions of assets of the former Trade Union Association as well as the objections of NSZZ "Solidarno" concerning various decisions and regulations of the Minister of Labour and Social Policy and the work of the Stock-Taking Commission. The Committee expresses the hope that these issues will be resolved in the near future and asks the Government to keep it informed of any progress.

Case No. 1895 (Venezuela)

66. During its November 1997 meeting [see 308th Report, paras. 672 to 684], the Committee examined allegations concerning the arbitrary detention of Mr. José Ramón Pacheco, President of the Single Grass-Roots Union of Workers of the Department of Education (SUBATRA). The Committee requested the Government to keep it informed of the results of the criminal proceedings against the trade union officer in question for suspected falsification of documents. In a communication of 24 February 1998, the Government informed the Committee that the judicial authorities have decided to release Mr. José Ramón Pacheco while the investigation continues concerning the crime of falsification of documents which he is alleged to have committed. The Committee takes due note of this information, and requests the Government to keep it informed regarding the results of the judicial proceedings against the trade union officer, Mr. José Ramón Pacheco.

67. Finally, as regards Cases Nos. 1512/1539 (Guatemala), 1581 (Thailand), 1719 (Nicaragua), 1809 (Kenya), 1819 (China), 1824 (El Salvador), 1826 (Philippines), 1834 (Kazakhstan), 1843 (Sudan), 1863 (Guinea), 1883 (Kenya), 1886 (Uruguay), 1890 (India), 1891 (Romania), 1895 (Venezuela), 1900 (Canada/Ontario), 1903 (Pakistan), 1912 (United Kingdom/Isle of Man), 1916 (Colombia), 1918 (Croatia), 1920 (Lebanon), 1921 (Niger), 1925 (Colombia), 1936 (Guatemala), and 1945 (Chile), 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 recently received information concerning Cases Nos. 1594 (Côte d'Ivoire), 1618 (United Kingdom), 1698 (New Zealand), 1849 (Belarus), 1852 (United Kingdom), 1854 (India), 1862 (Bangladesh), 1864 (Paraguay), 1913 (Panama), 1937 (Zimbabwe) and 1940 (Mauritius) which it will examine at its next meeting. In Case No. 1912 (United Kingdom/Isle of Man), the Government states that a reply will be furnished as soon as the Isle of Man authorities send it.

Case No. 1867

Definitive report

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

Allegations: Transfer and dismissal of a trade union official
on account of his trade union activities

68. The Committee examined this case for the last time at its meeting of March 1997 when it presented an interim report to the Governing Body [see 306th Report, paras. 56-69, adopted by the Governing Body at its 268th Session (March 1997)]. Subsequently, the State Workers' Association (ATE) sent additional information in a communication dated 31 July 1997.

69. The Government sent its observations in a communication dated 27 February 1998.

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

A. Previous examination of the case

71. At its previous examination of the case, when it analysed the allegations made concerning the transfer and subsequent dismissal of a trade union official due to anti-trade union reasons, the Committee noted that the complainant's and the Government's versions of the events were contradictory. In particular, the Committee noted in its conclusions that [see 306th Report, paras. 65 and 66]:

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

for reasons of service and with a view to consolidating its skilled staff, the internal auditing department temporarily transferred the employee Mr. Rojo -- tax inspector --to another department;
the person concerned refused to comply with this order, despite the fact that it was repeated; he then put in writing that the person who had decided the transfer "lacked the necessary moral fibre to conduct the organization and was totally unable to function", which caused "moral damages to his hierarchical superior, undermining his honour and reputation" ("slander");
after having "failed to fulfil his duties" and "being disrespectful and insulting to his superiors", which made him "subject to disciplinary measures", he was suspended;
"the failure to carry out services individually and on a regular basis constitutes a form of misconduct subject to a penalty, particularly in view of the fact that the accused clocked in and out of work with a card and failed to carry out the services he was supposed to do, which implies fraudulent behaviour and a violation of article 11(a) of the Statutes; this is tantamount to a desertion of duties which gives rise to the suspension of an official (article 36(c)) under these Statutes";
"another charge against the accused is the failure to comply with the requirement under article 11(k) of the Statutes, in other words to maintain a respectful attitude; indeed, on one occasion he displayed physical violence and, on others, made verbal threats".

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

In these circumstances, the Committee made the following recommendation [see 306th Report, para. 69]:

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

B. Additional information from the complainant

72. In its communication of 31 July 1997, the State Workers' Association (ATE) rejects the argument of the Province of Salta and the Argentinian Government that the suspension and subsequent dismissal of Mr. Rojo were not questioned and were not related to the participation of the trade union official in trade union activities. The trade union dispute was made public and discussed in the local press through the personal participation of Mr. Rojo; it is undeniable this prompted the employer to apply the discriminatory sanctions of suspension and dismissal. The trade union organization states that the suspension and dismissal sanctions were not ordered for "reasons of service" or "failure to carry out services", as falsely claimed by the Government, but during and on the occasion of or after the trade union dispute, and as a reprisal for the protection of workers' interests which the trade union association and official in question carried out. According to the ATE, the protection of such rights in no way morally damaged his hierarchical superior or undermined his honour and reputation and in no way did he commit an offence of slander, since as can be seen from the sentences handed down in the legal proceedings against members of the General Incomes Board on charges of fraud against the public administration, abuse of authority and desertion of the duties of public officials to the detriment of the Province of Salta, proceedings were taken against several persons of the administration accused of having committed these offences (the complainant sends a copy of these documents). There is no doubt that the dispute and the suspension and dismissal occurred around the same time, since the latter were ordered immediately after the trade union dispute. There could not be any desertion of duties on a personal basis when the trade union official was exercising the right to strike, at the same time as all the employees of the General Incomes Board and other ATE trade union leaders.

73. The ATE emphasizes that the discrimination was evident since only Mr. Rojo was sanctioned and no penalty was applied against any other trade union leader or member participating in the dispute. However, the apparent disciplinary sanction was no such thing because Mr. Rojo did not commit any malicious acts, or display any physical violence or make any verbal threats, or fail to comply with the obligations required by the Public Service Statutes. This can be seen in the lack of evidence from the Government, whether administrative or judicial, concerning the charges and action taken against Mr. Rojo in respect of the supposed offences (the complainant includes several press cuttings on this allegation).

74. The complainant adds that it appears from the file of Graciela Castro (Director of the General Incomes Board) on the compulsory conciliation hearing with staff of the General Incomes Board submitted to the Provincial Labour Directorate that the Province of Salta, through the Director of the General Incomes Board, requested compulsory conciliation in the labour dispute concerning its staff who, from 5 March 1992, took direct action measures following the modification and reduction of salaries. The ATE agreed to halt the direct action measures following the intervention of the regional delegate of the General Confederation of Labour. In the same way, the complainant states that it is clear from resolution 231/87 and the minutes of 18 August 1987 that the collective dispute was clearly of a trade union nature and thus arrangements were made for compulsory conciliation, it having been expressly agreed in point 6 "on the basis of the present structure of the General Incomes Board to draw up the corresponding list of posts by common agreement by 21 August 1987, for approval by 31 August 1987, with the participation of the trade union representation in this process, it being established that no person currently providing effective services in this body may be excluded". The complainant points out that in the final analysis the collective dispute and the personal situation of Mr. Rojo at his workplace were subjects of negotiation during the conciliation stage. The complainant also includes a copy of the different judicial decisions handed down concerning Mr. Rojo.

75. The trade union organization states that on 1 September 1992, the Chamber of Deputies of the Province of Salta examined and adopted the following draft declaration: "The Chamber of Deputies of the Province of Salta ... declares: ... its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127, ordered the dismissal of Mr. Rojo, an employee in the General Incomes Board and currently Secretary General of ATE, and would welcome arbitration by the Provincial Executive Branch concerning the necessary measures to be taken with a view to reconsidering the measure adopted". During the debate, an analysis was made of the validity and application of national Act No. 23551 at the provincial level, and a decision was adopted by majority vote that the trade union official should be reinstated in his job since he had been the victim of an act of discrimination, in reprisal of his trade union functions.

76. The complainant adds that in addition to the initiation of summary proceedings applicable to cases involving trade union protection in the Administrative Court, Mr. Rojo also challenged Decrees Nos. 1127/92 and 1825/92 as being null and void and unconstitutional as well as the entire administrative procedure ordering his dismissal and, having exhausted the administrative appeal procedure without having obtained his reinstatement, took the matter to the Administrative Court on 23 February 1993. According to the complainant, this documentary evidence refutes the false argument of the government of the Province of Salta and the national Government which claim that Mr. Rojo did not challenge his dismissal. On the contrary, it shows that having made use of the legal recourse of the summary procedure applicable to cases involving trade union protection, the plaintiff obtained in the first instance a ruling in favour of his reinstatement which was overturned in the second and third instances on purely formal grounds, in violation of ILO treaties and Conventions. (The complainant appends a copy of the above-mentioned file.)

C. The Government's reply

77. In its communication of 27 February 1998, the Government states that the complainant alleges infringement of the guarantee of stability provided for by the Act respecting trade union associations, No. 23551, and that this legal right is typified as a form of explicit protection by ILO Convention No. 135, without prejudice to the fact that both Convention No. 98 and Convention No. 151 oblige States to take measures to guarantee appropriate freedom of bargaining, whether as regards private activity or public activity proper, but without requiring any specific conduct by the State to guarantee the legal protection in question. Convention No. 135 establishes that workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers' representatives. For its part Convention No. 98 does not make any specific reference to a form of trade union protection but, in accordance with the provisions of Articles 1, 3 and 4, it can be inferred that States may decide for themselves the form for implementing and adopting the provisions of the Convention in national legislation. In this last case -- Convention No. 98 -- it should also be noted that the international instrument itself does not deal with the position of public servants directly engaged in the administration of the State as well as officials in lower categories who act as assistants to persons in such categories, and therefore this instrument does not cover Mr. Rojo, since he was employed in the central administration and more specifically in the General Incomes Board of the Province of Salta. The Government points out that neither Convention No. 98 nor Convention No. 135 are applicable to the matters raised in the present complaint, and that it does not see how Convention No. 87 is applicable to the plaintiff's situation.

78. The Government states that the newspaper cuttings presented by the complainant do not show that the conduct of the parties reflected a situation of dispute suggesting an outcome such as that which occurred, since at all times trade union action has been free of any influence by the State; there is no indication of any activity by the government of Salta which tends to limit this right or hinder its legal exercise. The Government adds that the proceedings against Mr. Rojo referred to aspects which had nothing to do with trade union claims and that it was a recognized fact that he did not present himself for work at the required place and that his reasons for non-appearance were not consistent with the alleged argument of persecution; according to the Government, the reasons given were more indicative of a culpable attitude and these reasons were further supplemented in the statement of general references to corruption, matters which without prejudice to their serious nature fall outside the scope of Convention No. 87 and which are regulated by disciplinary procedures unrelated to this international instrument and punishable by the respective laws on the subject. According to the Government the dispute developed without any kind of interference by the administration.

79. The Government states that the only international instrument ratified by Argentina which should be specifically applied to the activity of the plaintiff is Convention No. 151 but once again the provisions of the international instrument are not applicable to this case in a way which could result in an observation on the international adaptation of the principle. Convention No. 151 does not indicate to the State the manner in which this protection should be exercised; this may be through a variety of means and instruments. Therefore the Government states that the question arising in the present case lies outside any international jurisdiction and that it would only fall within the competence of the Committee if the dismissal were due to trade union membership or to normal activities carried out in the organization, but in this respect no evidence has been presented to demonstrate any action by the State in this sense. The Government adds that the complainant merely produces the documents used in the legal proceedings without even referring to the sufficiency of the legislation of the Province of Salta to guarantee the protection of trade union representatives in the public administration and that the case has been side-tracked by considerations of whether the standards established in sections 47 and 52 of Act No. 23511 may or may not be considered as powers which have or have not been delegated by the Province of Salta to the State, a matter which is not for the latter to decide, but which falls within the jurisdiction of the Province itself.

80. The Government states that the question which needs to be asked in this case is whether the government of Salta has established a protection system which prevents discriminations in the sphere of freedom of association or not. The Government replies in the affirmative, since irrespective of whether it is or is not a power which has been delegated and the validity in the Province of the procedure established by Act No. 23511, the legal scheme for the stability of public officials in the Province was never called into question and this scheme, together with the constitutional provisions, provided sufficient guarantees under the Act respecting trade union protection to comply with the provisions of Convention No. 151. According to the Government, no one in the public service may be dismissed without justified cause and without prior summary proceedings, which implies that the administrative authority may only dismiss workers on particular and justified legal grounds, a procedure which fully guarantees the provisions of Article 4(b) of Convention No. 151. The suspension of Mr. Rojo is not contrary to stability but is a preventive procedure pending the substantiation of the summary proceedings; in the same way, there has been no judicial ruling which has declared these summary proceedings null and void. The Government emphasizes that it is not correct that no guarantee is provided in Argentina of the protection of trade union rights by means of rapid and efficient procedures, and if the plaintiff makes a mistake in the choices available to obtain justice this is not a matter which concerns the administration, as the Court itself emphasized when it stated that he should have exhausted the administrative means available to him.

81. Finally, the Government states that the grounds on which the suspension and dismissal of Mr. Rojo were based were not due to his membership in an organization of public employees or his participation in the normal activities of such an organization, but to specific disciplinary measures which were not refuted in the proceedings carried out.

D. The Committee's conclusions

82. The Committee observes that the complainant has alleged in this case the transfer of the trade union official Mr. Rojo due to anti-union reasons and his subsequent dismissal.

83. First of all the Committee observes that the Government states that it is not appropriate in this case to refer to the application of Conventions Nos. 87, 98 and 135, since Mr. Rojo worked in the central administration of the Province of Salta and that, as regards Convention No. 151, both the legislation of the Province of Salta and the national legislation provide the necessary protection against possible acts of anti-union discrimination in the public administration. In this respect, the Committee emphasizes that, as the Government itself has indicated, Convention No. 151, ratified by Argentina, grants protection against acts of anti-union discrimination which can be committed at the level of the national public administration as well as at the provincial level. Furthermore, the Committee notes that the Government does not indicate whether Act No. 23551 respecting trade union associations (which provides protection against the dismissal of trade union officials) is applicable in the provincial public administration, and points out in any event that the public administration is governed by a provincial "system of public official stability".

84. In this respect, the Committee notes that it has already ruled on this aspect in its previous examination of the case and it refers in this connection to the conclusions made on that occasion, which state as follows: "The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable. The Committee nevertheless recalls that irrespective of the procedural or substantive laws applying to public officials or employees in provinces of the federal State, it is bound to examine whether the actual alleged anti-union discrimination measures are or not in accordance with the provision of ratified ILO Conventions and the principles of freedom of association" [see 306th Report, paras. 63 and 64].

85. As regards specifically the transfer and subsequent dismissal of Mr. Rojo, the Committee notes that the complainant repeats that these acts were committed as a reprisal to the protection of the workers' interests by the trade union association and the official in question, and that there is no doubt that the dispute and the measures taken against Mr. Rojo were directly related since the latter immediately followed the trade union dispute. The Committee notes that the Government also repeats that the reasons for which the suspension and dismissal of Mr. Rojo were ordered were not due to membership in a trade union organization or participation in the normal activities of such an organization, but to specific matters of discipline, which according to the Government have not been refuted in the procedures taken to date. Furthermore, in the view of the Government, Mr. Rojo did not make use of the appropriate legal means for dealing with his case.

86. In this respect, the Committee notes that, even after the previous examination of the case, the versions of the complainant and the Government continue to be contradictory concerning the anti-union motivation of the transfer and subsequent dismissal of Mr. Rojo. The Committee also notes that it appears from the documentation and the judicial rulings sent by the complainant that: (1) the Administrative Court of First Instance of the Province of Salta stated that "Act 23551 has established a protective legal procedure with regard to anti-trade union conduct" (section 52 of this Act stipulates that "workers protected by the guarantees for which provision is made in sections 40, 48 and 50 of this Act may not be dismissed or suspended and their conditions of work may not be changed without prior judicial resolution excluding them from the guarantee ...") and thus ordered the reinstatement of Mr. Rojo in his workplace; and (2) the Court of Justice of the Province of Salta overturned the ruling of the Court of First Instance on the grounds that Act No. 23551 is not applicable to public employees of the province but "without prejudice to the possible administrative and judicial revision of the legitimacy of the administrative acts (transfer, suspension and dismissal of the trade union official) in question by means of the appropriate appeals". The Committee notes that in this way the Court of Justice of the Province of Salta did not rule on whether or not there had been anti-trade union discrimination and indirectly referred the dispute between the parties, which dates from 1992, back to the administrative level and in this case to the administrative courts.

87. Bearing in mind all these elements, the Committee concludes that: (i) the collective dispute between the parties and the transfer of Mr. Rojo occurred at approximately the same time (the dispute began at the end of February 1992 and his transfer was ordered on 30 March); and (ii) although the administrative resolution dismissing Mr. Rojo refers to "slander" by the official against his hierarchical superior ("lacked the necessary moral fibre"), this occurred within a context of accusations about financial irregularities and corruption in the institution made by the complainant, which resulted in the legal proceedings against Mr. Rojo's superiors, which does not exclude the possibility that the measures against this official constitute a form of reprisal.

88. The Committee recalls in this respect that it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 740]. In any event, the Committee believes that in this case account should be taken of: (1) the important trade union post held by Mr. Rojo at the time when the dispute began (Secretary General of the Provincial Executive Council of the State Workers' Association of the Province of Salta); (2) the importance of this case for the Province of Salta (the Chamber of Deputies of the Province declared in September 1992 "its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127 ordered the dismissal of Mr. Rojo, and that it would like to see the provincial Executive Branch take the necessary steps with a view to reconsidering the measure adopted"; (3) the fact that the judicial appeal authorities have not ruled on the substance of this case (the existence or non-existence of anti-union discrimination) but merely examined whether Act No. 23551 (and in particular the provisions respecting trade union protection) was applicable to the trade union official of the Province of Salta, Mr. Rojo; (4) the absence to date of any definitive judicial ruling on whether the said (federal) Act and in particular the trade union protection which it regulates are applicable in the Province of Salta, so that the measures taken against Mr. Rojo (transfer and subsequent dismissal) are part of a context of legal uncertainty concerning its validity; and (5) the extremely long period of time which has elapsed (seven years) since the measures were taken against Mr. Rojo, without any final ruling having been made by the judicial authority. In these circumstances, the Committee considers that serious and concordant elements of presumption exist which lead it to believe that Mr. Rojo has been a victim of anti-union discrimination. The Committee requests the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post and, if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

The Committee's recommendation

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

The Committee requests the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post and, if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

Case No. 1887

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

Complaint against the Government of Argentina
presented by
the Tram Drivers' Union (UTA)

Allegations: Restrictions on the right to

collective bargaining

90. The Committee examined this case during its May 1997 meeting and presented an interim report to the Governing Body [see 307th Report, paras. 55-69, approved by the Governing Body at its 269th Session (June 1997)].

91. The Government sent its observations in communications dated 9 May and 1 October 1997 and 27 May 1998. At its meeting of March 1998, the Committee deferred its examination of this case at the request of the Government.

92. Argentina 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 Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

93. When this case was last examined there were outstanding allegations from the Tram Drivers' Union (UTA) raising objections to the following Decrees laid down by the executive power: Decree No. 1553/96, empowering the Ministry of Labour to revoke the registration of a collective labour agreement; Decree No. 1554/96, empowering the Ministry of Labour to determine the scope of collective bargaining; and Decree No. 1555/96, containing certain provisions regarding collective bargaining within the framework of small enterprises (see annexed the relevant articles to the Decrees in question).

94. In its meeting in May 1997 the Committee formulated the following recommendation [see 307th Report, para. 69]:

With regard to the alleged restriction of the right to collective bargaining under Executive Decrees Nos. 1553/96, 1554/96 and 1555/96, the Committee expresses the hope that the Government, as it has indicated, will forward its observations shortly. Finally, the Committee requests the complainant to submit additional information regarding these allegations.

B. The Government's reply

95. In its communication of 9 May 1997, the Government indicated that Decrees Nos. 1553, 1554 and 1555 have been suspended since they were the subject of a case before the Supreme Court.

96. In its communication of 1 October 1997, the Government stated that the suspension of the application of Decrees Nos. 1553/96, 1554/96 and 1555/96 would remain in place. Moreover, a presentation to the Supreme Court by the General Confederation of Labour (CGT) and the State has led to an agreed suspension of the legal process on the case (the Government attaches to its reply a copy of the above-mentioned judicial presentation, endorsed by legal representatives of the CGT and by the Ministry of Labour and Social Security). In this presentation a suspension of the legal process for a period of 120 days, in order to arrive possibly at an out-of-court solution was requested (the Government also attaches a copy of the ruling of the Supreme Court in reply to this request). The Government adds that suspension of the proceedings will remain in place until the middle of December 1997, and consequently the Decrees in question have not had any practical application; and currently representatives from workers, employers and the national authorities are involved in preparing a draft agreement on collective bargaining.

97. In its communication of 27 May 1998, the Government forwarded a copy of the draft law on labour law reform, which has been presented to Parliament.

C. The Committee's conclusions

98. The Committee observes that, in this case, the complainant organization is alleging restrictions on the right to collective bargaining in virtue of the Decrees passed in December 1996 by the executive power: Decree No. 1553 (which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement), Decree No. 1554 (which provides that should there be disagreement among the parties the Ministry of Labour and Social Security will determine the scope of collective bargaining) and Decree No. 1555 (which provides for collective bargaining within the framework of small enterprises).

99. The Committee notes that the Decrees in question were declared wholly or partly unconstitutional by legal tribunals of first and second instance, and subsequently went before the Supreme Court.

100. In this respect the Committee notes the Government's indication that: (1) the Decrees were suspended from taking effect in virtue of judicial proceedings before the Supreme Court; (2) the Ministry of Labour and Social Security and the General Confederation of Labour (CGT) requested the Supreme Court to suspend the proceedings for a period of 120 days so that there was a possibility of arriving at an out-of-court agreement; (3) up until now the Decrees have not had any formal practical application; and (4) currently representatives of workers, employers and national authorities are in the process of drawing up a draft agreement on collective bargaining.

101. The Committee, in this context, proposes to examine the Decrees in question so that the principles of freedom of association and collective bargaining may be taken into account in the process of the legislative changes which the Government is carrying out with the social partners.

102. As regards Decree No. 1553/96, which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, on analysing the application of Convention No. 98 by Argentina, has for several years criticized the legal provisions relating to the registration of collective labour agreements, and has also already commented on the conformity of the Decree in question with Convention No. 98 [see observation of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A of 1998]. Therefore the Committee refers to the commentary of the Committee of Experts as follows:

The Committee recalls that for many years it has criticized the legal provisions relating to the granting of official approval by the Ministry of Labour for the validity of collective agreements which go beyond enterprise level; for the purposes of official approval consideration must be given not only to whether a collective labour agreement contains clauses violating the public-order standards of Acts Nos. 14250 and 23928, and also whether it complies with the following criteria: productivity, investment and the introduction of technology and vocational training systems (section 3 of Act No. 23545, section 6 of Act No. 25546 and section 3 of Decree No. 470/93).

In this respect, the Committee notes that the Government states that the question relating to the approval to be granted by the labour authorities, together with the contents of the collective agreements analysed prior to the granting of approval, should be dealt with in a draft legislative reform. Similarly, the Committee notes that the Government states that the influence of the State, through the granting of approval, has been significantly reduced as a result of the increase in collective bargaining at enterprise level, and that Decree No. 1334/91, which links wage negotiation to an increase in productivity is virtually revoked by Decree No. 470/93 for a wide range of conventional activities.

In these circumstances, the Committee expresses the hope that the draft reform on collective bargaining to which the Government refers will eliminate the provisions which place conditions on the official approval necessary from the administrative authorities for collective agreements going beyond enterprise level, and which are linked to criteria of productivity, investments and the introduction of technology and vocational training systems. The Committee requests the Government to send it a copy of the draft legislation with its next report.

The Committee observes that in December 1996 the Government issued Decree No. 1553/96 which authorizes the Ministry of Labour and Social Security to revoke, in part or in whole, the official approval of a collective agreement if the provisions thereof conflict with the legal rules issued after approval has been granted and if once the agreed period has expired the Ministry considers that the validity of the agreement no longer meets the requirements of section 4 of Act No. 14250. The Committee considers that this Decree confirms and expands the intervention of administrative authorities in collective bargaining, something which has already been criticized.

103. As regards Decree No. 1554/96, which empowers the Ministry of Labour and Social Security to determine the scope of collective bargaining, the Committee notes also that the Committee of Experts has commented on the conformity of this Decree with the provisions of Convention No. 98 [see observation from the Committee of Experts, op. cit.]. Therefore, the Committee refers to the commentary of the Committee of Experts as follows:

Furthermore, the Committee observes that in December 1996, Decree No. 1554/96 was also issued and provides that in cases where parties do not reach agreement on the sectors to be covered by negotiations of a collective agreement, this shall be decided by the Ministry of Labour, which must not exceed the minimum scope proposed. In the Committee's opinion, this implies that between a proposal for negotiation at the level of industry or branch of activity and a proposal for negotiation at enterprise level, in the absence of an agreement between the parties, a decision is taken within the enterprise sector and is imposed by the administrative authority concerned. In this respect, the Committee emphasizes that in drawing up the Convention, the principle of voluntary collective bargaining and the level of negotiation should not be conditioned or imposed by legislation or by a decision of the administrative authority, but should depend essentially on the will of the parties concerned.

104. As regards Decree No. 1555/96, which contains certain provisions regarding collective bargaining within the framework of small enterprises, the Committee notes that the National Chamber of Labour -- a judicial body at the appeal level -- declared sections 1 and 5 of the Decree in question unconstitutional. In this respect it should be highlighted that section 1 gives "the internal committee, staff delegates or similar bodies" the possibility of concluding collective agreements within the sphere of small enterprises. In this way, although it may be considered that a provision of this type does not in itself violate the principles of freedom of association, the Committee reminds the Government that the Workers' Representatives Convention, 1971 (No. 135) and the Collective Bargaining Convention, 1981 (No. 154), contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 787]. The Committee would point out to the Government the importance it attaches to this principle.

105. The Committee points out to the Government the above-mentioned principles and conclusions on Decrees Nos. 1553/96, 1554/96 and 1555/96 -- currently suspended -- in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and any collective agreements adopted pursuant to the decrees. Likewise, the Committee expresses the firm hope that the draft agreement for collective bargaining which the Government has indicated it is preparing with the participation of the social partners and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

The Committee's recommendations

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

The Committee would point out to the Government the principles formulated in the conclusions with respect to Decrees Nos. 1553/96, 1554/96 and 1555/96 in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and the collective agreements adopted pursuant to the decrees.
The Committee expresses the firm hope that the draft agreement on collective bargaining which the Government has indicated it is preparing with the participation of the social partners, and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

Annex

Decree No. 1553/96: The President of Argentina decrees that: Section 1. The Ministry of Labour and Social Security, after consultation with the parties, may revoke, in part or in whole, the registration of a collective labour agreement when:

its clauses conflict with legal standards laid down subsequent to registration;
one or more of its clauses have been judicially declared illegal;
the time period having lapsed, its validity no longer meets the requirements of section 4 of Act No. 14250 (Decree No. 108/88).

Section 2. Inform, publish, pass on to the National Directorate of the Official Registrar, and file.

Decree No. 1554/96: The President of Argentina decrees that: Section 1. Substitute section 4 of Decree No. 200/88 with the following: "Section 4. Within the legal time-limit laid down in section 4 of Act No. 23546 a hearing will be called to form the negotiating committee. During this the parties may agree to carry out their negotiations directly or through a civil servant who will be designated by the relevant authority. Once the negotiating committee is formed, each party shall clearly indicate its functional, personal and territorial sphere. Should disagreement arise, the Ministry of Labour and Social Security will define the sphere of negotiation in such a way that this covers and does not transgress the spheres that the parties' proposals superimpose." Section 2. Inform, publish, pass on to the National Directorate of the Official Registry and file.

Decree No. 1555/96: The President of Argentina decrees that: Section 1 (section 99 of Act No. 24467). The internal committee, staff delegates or similar bodies and an employer, group or association of employers may grant the start of collective bargaining for small enterprises. Likewise, lower level union bodies may request negotiation of a collective agreement for small enterprises. In both cases the higher level union body should begin negotiations within 15 days, and once this time-limit is passed the matter is understood to have been delegated to the lower level union body for negotiation. In all competing cases of collective agreements, the collective agreement within the sphere of small enterprises shall prevail. Section 2 (section 100 of Act No. 24467). Should any one of the parties signatory to a collective labour agreement request the start of collective bargaining on labour organization and wage structure for small enterprises, the Ministry of Labour and Social Security will convoke the parties to form a negotiating committee within 20 days of receiving the petition to this effect. In this case the petition does not imply denunciation of the Convention in force for the petitioner but rather the claim to adapt what is already in force to the provisions of Act No. 24467. Without prejudice to that previously established, the parties involved may denounce the applicable collective labour agreement under the terms of section 12 of Law No. 14250 (Decree No. 108/88) and request as an alternative: (a) agreement on a new general collective agreement which should contain one special chapter for small enterprises; (b) agreement on a collective labour agreement with a specific sphere for small enterprises. In both cases the Ministry of Labour and Social Security should arrange the start of negotiations within a time-limit similar to that laid down in the first paragraph of this section. Section 3 (section 101 of Act No. 24467). Should collective bargaining for small enterprises occur, the negotiating committee should include a representative from this sector. Section 4. During the proceedings of collective bargaining for small enterprises the procedures of Act No. 23546 will apply. Section 5. Once the time-limit of a general collective labour agreement expires its application within the sphere of small enterprises will remain for a time-limit of three months. Three months after the time-limit of a collective agreement for small enterprises has expired, labour conditions shall be governed by Act No. 20744 and other applicable legal standards. At no time will the clauses in a collective agreement for small enterprises, once expired, be considered as acquired rights or with legal effect remaining in labour relations. That which is laid down in paragraph 2 shall not be applicable should there already be a collective agreement with larger scope with a specific chapter for small enterprises in force. Section 6. Inform, publish, pass on to the National Directorate of the Official Registry and file.

Case No. 1939

Interim report

Complaint against the Government of Argentina
presented by
-- the Latin American Central of Workers (CLAT) and
-- the Central Association of Argentine Workers (CTA)

Allegations: Killing, detention, physical assaults and
death threats against trade unionists and trade union
leaders, break-ins in trade union premises and trade
unionists' homes, requests to withdraw legal recognition

107. The complaint in this case is contained in a communication from the Latin American Central of Workers (CLAT) dated 7 August 1997. Subsequently, in a communication dated 16 October 1997, the Central Association of Argentine Workers (CTA) supported the complaint and presented new allegations.

108. The Government sent its partial observations in a communications dated 25 February and 22 May 1998.

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

A. The complainants' allegations

110. In its communication of 7 August 1997, the Latin American Central of Workers (CLAT) states that the worrying rise in the unemployment rate has resulted in greater levels of social unrest in Argentina, and that in order to honour its commitments and obligations to the workers, trade union leaders have augmented the number of measures protesting against the national authorities which in turn, in spite of the international Conventions signed by Argentina, have led to a disturbing increase in acts of anti-union discrimination. Specifically, the CLAT alleges that in a number of provinces and regions, the following acts of violence have been committed:

Neuquén Province. In this region, which has been affected by very high levels of unemployment following the privatization of the National Oil Company (YPF) and the associated lay-offs, a number of trade union leaders affiliated to the Central Association of Argentine Workers (CTA) have been the victims of acts which directly violate the right to freedom of association. Specifically, during a demonstration organized on 12 April 1997 by workers in the region to protest against unemployment and the anti-social policies implemented by the Government, Ms. Teresa Rodríguez was shot to death. All the sources consulted state that she was killed by a shot fired by a police officer during the mass police action against the demonstrators. Following the death, the Association of State Workers (ATE) set up a human rights commission in its premises to monitor the investigation into the killing. On 15 March 1997, these premises were the target of an attack, and on the 24th of the same month, a group of unidentified persons fired shots at the front of the premises. On the night of 23 June 1997, a group of about 40 police officers broke into the homes of the following members of the Central Association of Argentine Workers (CTA) of Cutral-Co: Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero. The trade unionists were taken from their homes without being informed of where they were being taken. The unlawful nature of the detentions is aggravated by the fact that, according to the testimony of various members of the detainees' families, some of the police officers involved in the operation wore hoods, struck children and old people, and used a disproportionate degree of force. According to confirmed reports, the officers were not from the Cutral-Co police department and had no jurisdiction in that city. The detainees were held at different times in different unknown locations. Subsequently, one police department claimed to be holding them in detention but declined to let anyone see them. After about 12 hours, following intense protests, the district criminal court judge proceeded to clarify the legal situation of the detainees and charged three of them (Cristián Rodríguez, Sandro Botron and Beatriz Parra) with committing an offence contrary to article 213bis of the Penal Code which provides for the punishment of members of a legitimate association which commits unlawful acts. The charge was based solely on the "evidence" of statements made by a number of police officials who accused the trade unionists of having participated in protest demonstrations and obstructed roads in the district, to demand the implementation of the agreement signed by the Government giving work to unemployed people in the area. The gravity of this illegal act is also underlined by the fact that only one legitimate charge was brought against three of the detainees. Another irregularity in legal terms was the fact that the detainees were conditionally released after being warned not to participate in any march or demonstration during the following days. This is particularly significant, bearing in mind the fact that a protest march had been due to take place 24 hours later in protest against the failure of the Government to keep its promises to provide jobs for the unemployed.
Buenos Aires Province -- Lanús. From 13 June 1997 onwards there was a series of physical attacks and threats against delegates and workers of the Lanús section of the Association of State Workers (ATE): (1) on 13 June at approximately 2 o'clock as he was leaving his place of work (the Evita Hospital in Lanús), the ATE delegate in that establishment, Mr. Jorge Villalba, was stopped by three individuals, one of whom wore a balaclava while the other two also concealed their faces. They proceeded to abuse him verbally for his trade union activities and shot him in the left hand. Mr. Villalba had to undergo surgery, the results of which are still not known. The incident was reported to the first police precinct of Lanús; (2) on 23 June 1997 at approximately 10 a.m., the mother of Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús employed in the laboratory department of the Evita Hospital, received by telephone a death threat against her daughter. The incident was reported to Criminal Court No. 4 of the district of Lomas de Zamora; (3) on 26 June 1997 at about 8.10 a.m., Ms. Ana María Luguercho, an ATE delegate employed at the Arturo Melo Hospital, was stopped a few yards from her home by two men in a car of unknown make who detained and threatened her; (4) the ATE-Lanús delegate, Mr. Daniel Saavedra, received a death threat by telephone at his home; the caller appeared to know all the members of his family and details of his allegations. The incident was reported to the criminal court of the Lomas de Zamora Judicial Department.
Buenos Aires Province -- San Martín. The General Secretary of the ATE-San Martín, Mr. Víctor Bordiera, received an anonymous death threat by telephone at his home. The San Martín regional unit of the Buenos Aires Province police took note of the report of the incident and in turn reported it to the criminal court of the San Martín Judicial Department.
Buenos Aires Province -- General Rodríguez district. On 10 July 1997, an unsigned letter was received at the home of Mr. Ricardo Caffieri, containing threats against the Deputy General Delegate of ATE for General Rodríguez district. That night and the following day, he received similar threats by telephone at his home. The incident was reported by the General Secretary to the local police station, which immediately reported the matter to the district judge.
Attack on the home of the Deputy Secretary of the ATE (National-Federal Capital). At dawn on Saturday, 28 June 1997, the home of the Deputy Secretary of the ATE (National Branch), Mr. Juan González, came under attack. The attackers broke down the front door of the premises, which were not occupied by Mr. González at the time. The nature of the attack was evidenced by the fact that the attackers did not remove anything of value or indeed anything else from the premises. The operational capabilities of the attackers was illustrated by the fact that Mr. González lives right in the centre of the capital, only a block away from the district police station and close to the National Congress, in an area which enjoys a high level of police protection.
Comodoro Rivadavia and Goya districts. At dawn on 2 July 1997, unknown persons attacked the premises of the ATE (Comodoro Rivadavia section). The premises were looted. At the time of the attack, a police patrol was located less than 100 metres away but claims to have seen no suspicious activity, although the attackers removed all the furniture, computers and the fax machine from the premises. The premises of the Goya section of the ATE were also looted. In that incident, only minor articles were removed, fixtures were destroyed and graffiti drawn on the walls. Both cases are being investigated by the criminal courts of Comodoro Rivadavia and Goya districts.

111. In its communication dated 16 October 1997, the Central Association of Argentine Workers (CTA) alleges that the attacks against the freedom of association of the CTA and its members in Neuquén Province have intensified and that the Governor of the province has requested the withdrawal of legal recognition from the state employees' and teaching unions (ATE and ATEN) which were affiliated to the CTA. The complainants maintain that the request is clearly an attempt to retaliate against the trade unions for the protests and stoppages agreed by them following a government decision to cut wages by 20 per cent. The complainants explain that during these legitimate union activities, which were conducted in accordance with all the relevant legal provisions, there were isolated disturbances caused by trouble-making elements that had nothing to do with the organizations concerned.

B. The Government's reply

112. In its communications of 25 February and 22 May 1998, the Government states that, with regard to the killing of Ms. Teresa Rodríguez in Neuquén Province, an inquiry has been instituted by the Criminal Investigation Court of Cutral-Co, and that this investigation is at the preliminary stage of gathering evidence with a view to identifying the person or persons responsible for the killing and that police officer Hugo Alberto Rudolf has been indicted. Evidence from witnesses, ballistic evidence and evidence obtained from visual inspection of the scene have been obtained and the defence is presently appealing the indictment. Any new developments in the matter will be communicated immediately to the Committee.

113. The Government states that, with regard to the incidents reported to have taken place within the jurisdiction of Buenos Aires Province -- Lanús, Lujan and General San Martin -- information has been requested from the Under Secretariat of Labour of Buenos Aires Province (the competent body for labour matters within the province). According to that body, no complaints have been received from the victims or from any trade union. Nevertheless, the appropriate inquiries are being carried out with the police of Buenos Aires Province and any information will be communicated to the Committee as quickly as possible. Finally, the Government states that, as concerns the incidents taking place in the provinces of Santa Cruz and Neuquén, it is awaiting the information requested from the respective governments. As concerns Ana María Luguercho, the proceedings currently under way in Lanús are not related to the allegations.

C. The Committee's conclusions

114. The Committee notes that in the present case, the complainants allege the killing of a worker during a protest demonstration, the detention of trade unionists and break-ins at their homes, physical assaults and death threats against trade unionists, attacks on trade union headquarters and premises and on trade unionists' homes, and the request to withdraw legal recognition of a trade union in retaliation for demonstrations and stoppages.

115. Firstly, the Committee notes with concern the gravity of all the allegations presented and regrets that the Government has only provided partial information.

116. With regard to the allegation concerning the killing of the worker Ms. Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén Province in protest against unemployment, the Committee notes that the Government states that it has initiated judicial proceedings, a police official has been indicted in this matter and the indictment is being appealed.

117. The Committee deeply deplores the killing of Ms. Teresa Rodríguez and cannot refrain from noting that the Government confirms the involvement of the police in the incidents in which the worker concerned died. Under these circumstances, the Committee hopes that the judicial proceedings will clarify the incidents, apportion responsibility and impose sanctions on the person or persons responsible, and requests the Government to keep it informed of the outcome of these proceedings.

118. The Committee also recalls that in June 1996 it examined allegations of acts of violence against trade unionists who had participated in a protest demonstration in which a worker had also died. On that occasion, the Committee recalled that "the authorities should resort to the use of force only in situations where 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 governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 137]. The Committee requested the Government "to instruct the police authorities in future to guarantee the exercise of the right of trade unions to demonstrate without being the object of disproportionate measures or excessive violence" [see 304th Report, Case No. 1839, para. 55]. The Committee requests the Government in future to ensure that these principles are respected.

119. The Committee notes that the other allegations presented in this case refer specifically to: (1) the attacks that took place on 15 and 24 May 1997 on the union premises of ATE in which a human rights commission had been set up to monitor the investigation into the killing of Ms. Teresa Rodríguez; (2) the break-ins into unionists' homes and subsequent detention on 23 June 1997 of members of the Cutral-Co branch of the CTA (Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero) and the legal proceedings initiated against three of them (Rodríguez, Botrol and Parra); (3) the assault on ATE delegate Jorge Villalba, who was wounded in the left hand by a gunshot on 13 June 1997 in Lanús (the incident was reported to the Lanús police); (4) the death threat against Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús, on 23 June 1997 (a complaint was made to the judicial authorities); (5) the threat made on 26 June 1997 against Ms. Ana María Luguercho, ATE delegate at the Arturo Melo Hospital; (6) the death threat against the ATE-Lanús delegate, Daniel Saavedra (a complaint was made to the judicial authorities); (7) the death threat against Víctor Bordiera, General Secretary of ATE-San-Martín (a complaint was made to the judicial authorities); (8) the threat against Mr. Ricardo Caffieri, Deputy General Delegate of ATE-General Rodríguez district, on 10 July 1997 (a complaint was made to the judicial authorities); (9) the attack on the home of the Deputy Secretary of ATE (National Branch), Mr. Juan González; (10) the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya; and (11) the request by the Governor of Neuquén Province for the withdrawal of legal recognition from the state employees' and teaching unions (ATE and ATEN) which are affiliated to the CTA, as retaliation for the demonstrations and work stoppages carried out by those trade unions (the complainants attached to their complaint a resolution by the Ministry of Labour and Social Security dated 13 October 1997 which states that "the permanent legal service of the Ministry of Labour will proceed, in accordance with article 56 of Act 23551, to seek judicial annulment of the legal recognition granted to the trade union entity Sindicato de Trabajadores de la Educación de Neuquén").

120. In this context, the Committee regrets that the Government has not provided information on all the allegations, indicating only that information has been requested from the Under-Secretariat of Labour of Buenos Aires Province (that body has stated that no complaint has been received from the victims or from any trade union), that appropriate inquiries are being made with the police of Buenos Aires Province and that it has requested information from the governments of the provinces of Santa Cruz and Neuquén on the incidents which occurred there.

121. In these circumstances, the Committee urges the Government to provide its observations as quickly as possible on all the pending allegations (provinces of Buenos Aires -- Santa Cruz and Neuquén) stating expressly the status of the complaints before the police or judicial authorities to which reference has been made by the complainants. The Committee requests the Government to take the necessary measures to ensure protection for the CTA and ATE and for the trade unionists who have been threatened.

The Committee's recommendations

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

With regard to the allegation concerning the killing of Ms. Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén Province in protest against unemployment, the Committee hopes that the judicial proceedings currently in progress will clarify the facts, apportion responsibility and impose sanctions on the person or persons responsible, and requests the Government to keep it informed of the outcome of these proceedings.
Concerning the allegations relating to: (1) the attacks on 15 and 24 May 1997 on the ATE premises in Neuquén Province; (2) the break-ins at the homes and subsequent detention by the police on 23 June 1997 of members of the CTA of Cutral-Co (Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero) and the legal proceedings initiated against three of them (Rodríguez, Botron and Parra); (3) the assault on ATE delegate Mr. Jorge Villalba, on 13 June 1997 in Lanús; (4) the death threat made against Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús, on 23 June 1997; (5) the threat against the ATE delegate at the Arturo Melo Hospital, Ms. Ana María Luguercho on 26 June 1997; (6) the death threat against the ATE-Lanús delegate, Mr. Daniel Saavedra; (7) the death threat against the General Secretary of ATE-San-Martín, Mr. Víctor Bordiera; (8) the threat against the Deputy General Delegate of ATE-General Rodríguez district, Mr. Ricardo Caffieri, on 10 July 1997; (9) the attack on the home of the Deputy Secretary of ATE (National Branch), Mr. Juan González; (10) the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya; and (11) the request by the Governor of Neuquén Province to withdraw legal recognition from the state employees' and teaching unions (ATE and ATEN), which are affiliated to the CTA, the Committee regrets that the Government has not provided full information on these allegations and urges it to provide its observations as quickly as possible on all the allegations, indicating expressly the status of the complaints before the police or judicial authorities to which the complainants refer. The Committee requests the Government to take the necessary measures to ensure protection for the CTA and ATE and for trade unionists who have been threatened.

Case No. 1957

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

Complaint against the Government of Bulgaria
presented by
the National Syndical Federation ("GMH")

Allegations: Eviction from trade union premises --
confiscation of property

123. The complaint in this case is contained in a communication from the National Syndical Federation ("GMH") dated 12 March 1998. The Government sent its observations in a communication of April 1998.

124. Bulgaria 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

125. In its communication of 12 March 1998, the National Syndical Federation ("GMH") alleges that the administrative authorities sealed the offices of "GMH" headquarters in Sofia on 15 July 1997, barring access to trade union leaders and members and confiscating the office equipment and documents belonging to the organization. The complainant states that "GMH" was founded in December 1985 and that the premises it had occupied had been granted by virtue of Resolution No. 506 of 24 November 1992 of the Council of Ministers.

126. The complainant adds that after the change of Government, the Council of Ministers issued Resolution No. 394 of 1 October 1993 which provided, without any reason and under political pressure, for the eviction of the "GMH" from its trade unio