GB.274/8/1 - 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 4, 5 and 17 March 1999, under the chairmanship of Professor Max Rood.

2. The members of Argentine, British, Mexican and Panamanian nationality were not present during the examination of the cases relating to Argentina (Case No. 1947), the United Kingdom/Bermuda (Case No. 1959), Mexico (Case No. 1927) and Panama (Case No. 1967).

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3. Currently, there are 77 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 21 cases on the merits, reaching definitive conclusions in 13 cases and interim conclusions in eight cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1995 (Cameroon), 1997 (Brazil), 1998 (Bangladesh), 1999 (Canada/Saskatchewan), 2001 (Ukraine), 2003 (Peru), 2004 (Peru), 2005 (Central African Republic), 2006 (Pakistan), 2007 (Bolivia), 2008 (Guatemala), 2009 (Mauritius), 2010 (Ecuador), 2011 (Estonia) and 2012 (Russian Federation) 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.

Observations requested from governments

5. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1851 (Djibouti), 1922 (Djibouti), 1961 (Cuba), 1974 (Mexico), 1976 (Zambia), 1978 (Gabon), 1980 (Luxembourg), 1990 (Mexico), 1991 (Japan) and 1993 (Venezuela). In Cases Nos. 1974 and 1990 (Mexico), the Government has stated that its observations will be sent in the near future. In Case No. 1931 (Panama), the Government has requested the technical assistance of the Office. The Committee requests it to provide a response to the issues raised in the case so that the technical assistance requested can be based on the definitive conclusions and recommendations of the Committee.

Observations requested from complainants

6. In Case No. 1929 (France/French Guiana) the Committee has still not received the complainant's comments. Taking into consideration the considerable amount of time which has elapsed since it formulated its request, the Committee decides to close this case.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1865 (Republic of Korea), 1953 (Argentina), 1965 (Panama) and 1986 (Venezuela), the governments have sent partial information on the allegations made. The Committee requests all of these governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1773 (Indonesia), 1888 (Ethiopia), 1930 (China), 1934 (Cambodia), 1943 (Canada/Ontario), 1949 (Bahrain), 1951 (Canada/Ontario), 1960 (Guatemala), 1970 (Guatemala), 1971 (Denmark), 1972 (Poland), 1975 (Canada/Ontario), 1979 (Peru), 1984 (Costa Rica), 1985 (Canada), 1989 (Bulgaria), 1992 (Brazil), 1994 (Senegal), 1996 (Uganda), 2000 (Morocco) and 2002 (Chile) the Committee has very recently received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1939 (Argentina), 1963 (Australia) and 1988 (Comoros), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the cases, it has not received the observations of the governments concerned or has only received partial observations. 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 even if their complete 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.

Irreceivable complaint

10. On 26 November 1998 and 19 January 1999, the trade union New Wood addressed to the Chairman of the Committee communications in which it alleged infringements of trade union rights by the United Nations in Geneva. According to its procedure, the Committee can only examine complaints presented against a State. In these circumstances, the Committee is obliged to conclude that the communications in question are irreceivable and therefore is not in a position to examine the substance.

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Transmission of cases to the Committee of Experts

11. 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: Colombia (Case No. 1916), Nigeria (Cases Nos. 1793 and 1935), Panama (Case No. 1967), Peru (Case No. 1906), Turkey (Case No. 1981).

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

Case No. 1867 (Argentina)

12. The Committee examined this case at its June 1998 meeting [see 310th Report, paras. 68 to 89] and requested 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.

13. In a communication of 22 October 1998, the Government stated that it has undertaken the required formalities by notifying the Province of Salta of the recommendation formulated by the Committee.

14. In a communication of October 1998, the State Workers' Association (ATE) notes that having learned of the Committee's recommendation, Mr. Miguel Hugo Rojo presented a photocopy to the Administrative Court of First Instance of the city of Salta, in the Province of Salta, of the Republic of Argentina. In this administrative action which is actually at the evidentiary stage, the Province of Salta, through its legal representative, denied or refused to recognize the existence of the Committee's recommendations, and asked to have the document removed from the file. According to the complainant, this indicates that the Province of Salta refuses to recognize the recommendations of the Committee, the proof being that to date, Miguel Hugo Rojo has not been reinstated in his post, nor has he been paid the salary owing.

15. The Committee takes note of this information. The Committee deeply regrets that Mr. Rojo has not yet been reinstated in his former post nor has he been compensated fully. Under the circumstances, the Committee reiterates its former recommendation and again requests the Government to take the necessary steps immediately to implement the recommendation adopted in June 1998.

Case No. 1873 (Barbados)

16. The Committee last examined this case at its November 1998 meeting [see 311th Report, paras. 97-110]. The Committee had requested the Government to proceed to an objective verification as to whether the National Union of Public Sector Workers (NUPW) represented the majority of the workers in the public sector in Barbados and to send it the result of this verification.

17. In a communication dated 4 January 1999, the Government confirms that the NUPW is in fact the largest trade union which represents public servants in Barbados. However, as far as representativity is concerned, the Government indicates that the NUPW has a smaller membership than the other public sector unions which are represented by the Congress of Trade Unions and Staff Associations of Barbados (CTUSAB). The Government indicates that while CTUSAB is not an accredited trade union but rather an umbrella body, it nonetheless conducts negotiations on behalf of its affiliate members such as teachers, the Barbados Workers' Union (BWU) and nurses, as well as the "uniformed and disciplined services" which includes police, prisons and fire officers. Thus, the Government explains that the CTUSAB is more representative of the public servants than the NUPW and it is through this representation that the Government concluded its settlement on the new wage plan after bargaining in good faith. The Committee takes due note of this information.

Case No. 1509 (Brazil)

18. The Committee examined this case which concerns the murder of the trade union leader Valdicio Barbosa dos Santos at its meeting of November 1998 [see 311th Report, para. 21] and requested the Government to keep it informed of the final result of the legal proceedings concerning this case. In a communication of 25 January 1999, the Government states that the legal proceedings in question are still pending before the tribunal of the State of Espiritu Santo (in appeal from the criminal court) following an appeal lodged by the accused Mr. Romualdo Eustaquio Luz Faria. Furthermore, the Government indicates that the other accused, Mr. Gilberto Marcal da Rocha has not yet been located, which explains why the sentence has not been served to him. The Committee takes note of this information and requests the Government to keep it informed of the final result of the legal proceedings.

Case No. 1916 (Colombia)

19. In its previous examination of this case, the Committee urged the Government to take all the necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for organizing a strike in 1993 at the "Medellín Municipal Enterprises" (in the refuse collection sector) and, if this was not possible, to ensure that they received full compensation. The Committee also requested the Government to ensure that in future any declaration on the legal status of strikes (declaration of illegality) would be made by an independent body and not by the administrative authority, and to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term [see the 309th Report of the Committee, para. 105].

20. In its communications of 10 December 1998 and 15 January 1999, the Government provided a copy of a ruling given on 9 March 1998 by the Supreme Court of Justice stating that in June 1993 the majority of the workers had returned to work, while the four complainants continued their stoppage after it had been declared illegal and compensation for wrongful dismissal is therefore inappropriate. The Government adds that, once judicial decisions are handed down, the Government of Colombia, or of any other State based on the rule of law, has no choice but to comply, in view of the separation of powers. The workers now appealing to this international body availed themselves of all the available means of pursuing their claims. Although the judicial decisions which they obtained were not in their favour, they constitute a matter adjudged and must be respected by all.

21. At the same time, the Government points out that the case concerns a work stoppage, which is legally and constitutionally a different concept from that of a strike. This was expressly indicated by the persons responsible for formulating the complaint, who stated that at their General Assembly of 7 February 1993 they agreed to declare themselves "in permanent session", i.e. they never voted for strike action. It should be emphasized that the workers at no time voted for a strike but employed the union's own concept of a "permanent assembly", which in practice means an illegal stoppage and which affected refuse collection in the country's second largest city. Section 56 of the Political Constitution of Colombia guarantees the right to strike except in essential public services. The legislators developed this constitutional principle and specified those activities regarded as constituting essential public services in order to safeguard in full the right to strike in those occupations which by nature are not essential. Although currently there are laws which expressly define essential public services (for example, Act No. 142 of 1994 concerning public services for households, including sanitation), at the time when Resolution No. 00414 of 18 February 1993 was adopted, the principles embodied in it were already applied, although the relevant provisions of the 1991 Political Constitution had not been developed, and are becoming well established in law. This was the ruling given by the Council of State on 26 October 1994.

22. The Government states that, given the existence of judicial review of the administrative procedure for declaring a strike illegal (see (e)) within which a decision is given by the highest administrative court, the Council of State, and must be respected by the parties involved and by the Government, the following considerations should be borne in mind: the procedure for a declaration of illegality is not arbitrary. It comprises the following: (a) the only authority competent to register a stoppage or strike is the labour inspector who reports on the facts observed at the workplace and invites representatives of the employer and of the workers to put their respective cases in the administrative proceedings. The absence of any wish on the part of the parties to defend their claims is not a reason for halting the administrative proceedings; (b) the assessment of the facts is the responsibility of the Technical Sub-Directorate for Collective Affairs which draws up a draft resolution for signature by the Minister; (c) the decision is the sole responsibility of the Minister, after the case has been examined by the Legal Office (Advisory Office of Settlement); (d) the administrative decision is reconsidered; (e) the administrative decision of the Minister declaring the strike or stoppage illegal can be contested before the judicial authority. This system of supervision protects the interested parties from possible abuses of power by the Minister and from the possible illegality of the Minister's decision, and has the same effect in the Colombian justice system as would be had by the suggestion of the Committee on Freedom of Association that such decisions are a matter for judges rather than the administrative authorities. The solution provided by the national legal system takes into consideration the need for flexible decisions which will implement cogent instruments capable of deterring violations with a view to ensuring that a group of workers acting in violation of the law ceases to do so; this is a task for the administrative authorities, although it must be possible to contest their decisions from the legal point of view, and for this purpose workers have available to them the possibility of legal action.

23. The Government indicates that once a stoppage has been declared illegal, the employer is entitled to dismiss the workers involved, taking into account their degree of involvement. The employer's decision can be contested before labour courts which can order the reinstatement of a worker who has been unjustly or illegally dismissed.

24. As regards the definition of essential public services, in which according to the Colombian Constitution strikes are prohibited (section 56), the Government does not share the concern of the Committee on Freedom of Association with regard to the "wide range of services" in which strikes are restricted. Under national law, essential public services are those that have been expressly defined as such by the legislators and, whenever the term essential is applied, the Constitutional Court can review a legislative decision with a view to ascertaining whether or not the activity in question is really an essential public service (Ruling C-472 of 27 October 1994). According to the Ruling in question, a given public service may be deemed to be essential if it contributes directly to the protection of property or the fulfilment of needs or the expression of values connected with the respect, safeguarding, exercise and effectiveness of fundamental rights and freedoms. The criterion of the Constitutional Court is the same as that used by the Committee of Experts in its 1983 General Survey (paragraphs 213 and 214), namely, that only those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population" can be considered essential.

25. The activities which the legislators have defined as essential public services have arisen in response to the particular conditions prevailing in Colombia; there is not, as was suggested, any discretionary element in their definition. In those cases where, because of the essential nature of the public services in question, strikes are prohibited under the Constitution, provision is made, as a compensatory guarantee, for arbitration to resolve disputes. It follows that national legislation is in conformity with the interpretations of the Committee of Experts with regard to the rights of association and negotiation embodied in ILO Conventions Nos. 87 and 98.

26. The Committee notes that the Supreme Court of Justice did not order reinstatement or compensation for wrongful dismissal in the case of the four complainants who had taken part in and continued a work stoppage (the subject of the complaint in Case No. 1916) which had been declared illegal. The Committee observes that the decision of the Supreme Court of Justice is based on legislation currently in force, which empowers the Minister of Labour to declare a strike or work stoppage illegal, and that the declaration of illegality of the strike in the present case is based on the prohibition of strikes in the public services and specifically in hygiene and sanitation services (section 430 of the Labour Code). In this regard, the Committee observes that, according to the documents available to it, the stoppage began on 7 February 1993 and was declared illegal on 18 February and therefore does not rule out the possibility that the interruption in the refuse collection service for 11 days might have endangered the health of the population, and that this might have given rise to certain sanctions. However, although, as the Government states, the stoppage considered in the present case did not follow a strike vote, the Committee recalls that responsibility for declaring the strike (or stoppage) illegal should not lie with the Government but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 522], and that the legislation prohibits strikes in a very wide range of services which are not necessarily essential [see the 309th Report of the Committee, para. 101]. This being the case, the Committee draws these legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, which for many years has criticized the provisions of legislation which prohibit strikes in certain non-essential services.

Case No. 1925 (Colombia)

27. At its March 1998 meeting, the Committee formulated the following recommendations concerning the allegations that are still pending [see 309th Report, para. 119]:

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

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

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

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

28. In its communication of 15 January 1999, the Government forwarded its observations concerning these matters. The enterprise AVIANCA also forwarded information. In this respect, since AVIANCA is not the complainant in the present case, the Office asked the Government if it would like the information provided by AVIANCA to be considered as part of the Government's reply to the Committee. Under these circumstances, the Committee will adjourn its examination of the case until it receives the Government's response.

Case No. 1954 (Côte d'Ivoire)

29. During its last examination of the case at its session of November 1998, the Committee had requested the Government to take the necessary measures to ensure the reinstatement in their posts of 300 workers and 14 staff delegates from the Abidjan Ship Repair and Industrial Work Enterprise (CARENA) following strike movements started in March 1997; as regards the industrial dispute at the CARENA enterprise, the Committee had also requested the Government to resume negotiations on this matter and to keep it informed of decisions taken by the industrial advisory board made up of workers and employers involved in this industrial dispute under the supervision of experts from the Ministry of Employment [see 311th Report, para. 411(a) and (d)]. Finally, the Committee had requested the Government to undertake inquiries regarding the various interventions by the police against the strikers who had participated in the strike movements of March 1997 and with regard to the attack on and occupation of Dignité's premises for a number of days in February 1998 [see 311th Report, para. 411(b) and (c)].

30. In a communication dated 5 February 1999, the Government reiterates its previous comments on the events of March 1997 according to which Dignité staged an illegal strike, thus violating the agreement which the parties had reached, as well as violating the Labour Code and Decree No. 96-208 of 7 March 1996 on the conciliation procedure in the case of collective labour disputes. The Government declares that the Minister of Employment was right in declaring illegal the strike of 5 March 1997; in this context and taking into consideration the separation of power, the Government indicates that it cannot interfere to obtain the reinstatement of the workers dismissed following the strikes. In any case, the Government recalls that the workers in question can lodge a complaint with the competent national tribunals in order to have their rights reinstated. While taking note of this information, the Committee can only recall that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties [see 311th Report, para. 405]; in this case, the declaration of the strike as illegal having been used by the employer to dismiss in an abusive way a considerable number of workers, the Committee deplores this violation of freedom of association and urges once again the Government to take all necessary measures in order to reinstate in their posts, if they so wish, all workers and staff delegates who were victims of anti-union discrimination. In addition, it requests the Government to resume negotiations with regard to the industrial dispute at the CARENA enterprise and to keep it informed of the decisions taken by the industrial advisory board which was set up in this context.

31. As regards the various interventions by the police, the Government states once again that they were totally justified since they were dealing with matters of a very serious nature where public order could have been threatened; in this respect, the Government declares that as far as the events of March 1997 are concerned, not only had the workers used strike picketing to obstruct public streets but they had also threatened the installations of the enterprise and particularly the ships under construction. Concerning the protest march of 4 February 1998, the Government declares that Dignité never obtained the prior authorization from the Ministry of the Interior, in violation of Act No. 92-464 on the repression of certain forms of violence; this led to the intervention of national police units in order to prevent matters getting out of hand and disturbing public order. While taking note of this information, the Committee deplores the fact that the Government provides no new information and thus can only reiterate its previous conclusions according to which the use of police forces constituted an infringement of the trade union rights of the workers concerned. Finally, the Committee takes note of the fact that the Government paid an amount of 100 million francs CFA to the trade union organizations Dignité and Federation of Autonomous Trade Unions of Côte d'Ivoire (FESACI) in order for them to rebuild their headquarters since the labour exchange premises are entirely occupied by the General Union of Workers of Côte d'Ivoire (UGTCI).

Cases Nos. 1512 and 1539 (Guatemala)

32. At its meetings in November 1997 and March 1998, the Committee requested the Government to keep it informed of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-94) [see 308th Report, para. 394(b), and 309th Report, para. 19]. In its meeting in November 1998 the Committee noted the Government's reply in which it indicated that it would communicate a copy of the report of the commission; the Committee continued to await receipt of the report.

33. In a communication dated 29 January 1999, the Government sent a copy of a statement of the Commission on Historical Clarification according to which it indicated that it would finish its work in the course of January 1999 and that, at that stage, its report would be submitted to the parties and the United Nations Secretary-General who would render it public; it is the commission in question that will determine the date of the submission which should be during the month of February 1999. The Committee continues to await receipt of the report.

Case No. 1876 (Guatemala)

34. In its previous examination of this case (November 1998), the Committee noted in respect of the inquiries concerning the alleged rape of trade unionist Vilma Cristina González and into the alleged detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enriquez Garcia and Belarmino González de León, the Government's indication that these persons -- who are pursuing their activities as usual -- were still not collaborating with the authorities in the inquiries which is why no progress has been made. The Committee pointed out that it would only pursue its examination of these allegations if the complainant sent additional information on the acts alleged and on their lack of collaboration in the inquiries [see 311th Report, para. 47]. The Committee notes that the complainant has not sent the additional information requested and therefore considers, as it had announced previously, that this aspect of the case does not call for further examination. Furthermore, as concerns the allegations of acts of anti-union discrimination in the El Salto farm, the Committee requested the Government to carry out an inquiry to reply specifically to the allegations of discrimination and 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 [see 311th Report, para. 50]. In its communication dated 29 January 1999, the Government stated that the recourse to annul this matter was declared inappropriate on 19 September and none of the parties demonstrated an interest in continuing this route; therefore the file was closed. The Committee takes note of this information.

Case No. 1936 (Guatemala)

35. In its previous examination of the case (November 1998), the Committee requested the Government to keep it informed of the outcome of two criminal proceedings, the first one concerning the theft of an item of moveable property belonging to the National Electrification Institute lodged against members of this Institute's trade union, and the second concerning an individual action lodged by the administrative manager of the Institute against a group of workers [see 311th Report, para. 51]. In a communication dated 29 January 1999, the Government indicated that the moveable property referred to in the first criminal proceedings had been returned by the trade unionists to the Institute; the administrative manager of the Institute considered the case settled. As regards the second criminal proceedings, the Government indicated that it was an individual action lodged personally by the manager and that the public prosecutor had requested the judicial authority to end the proceedings. The Committee takes note of this information.

Case No. 1883 (Kenya)

36. The Committee last examined this case at its November 1997 meeting [see 308th Report, paras. 45 to 47]. The Committee had requested the Government to transmit a copy of the decision concerning the deregistration of the Kenya Wildlife and Allied Workers' Union which was still pending in the High Court.

37. In a communication dated 6 October 1998, the Government transmits a copy of the court proceedings of 7 October 1997 in which the High Court dismissed the application of the union. It appears from the decision that the Court rejected the application of the union on the basis that a recourse in mandamus was not the proper remedy in this case and that the complainant should have exhausted the relevant machinery rather than going for what the counsel of the union saw as a quick remedy to the problem. As stated by the Government, it appears from the decision that the union has the possibility to pursue this matter further. In this respect, the Committee requests the Government to keep it informed of any other legal proceedings the union might decide to take as well as to inform it of the outcome of such proceedings.

Case No. 1877 (Morocco)

38. At its meeting in June 1998, the Committee had requested the Government to keep it informed of developments with regard to the judicial proceedings instituted by the workers of the SOMADIR company in Casablanca and El Jadidale who had been dismissed or suspended on account of their legitimate trade union activities [see 310th Report, paras. 27 to 29]. In a communication dated 29 October 1998, the Government states that 33 workers have been reinstated in their jobs, that in three cases the parties have settled out of court through conciliation proceedings before the judge and that in three other cases a final decision has been handed down in favour of the dismissed workers, who have received the statutory compensation. It states that seven other cases are pending before the court of appeals while the rest are pending before the court of first instance. While noting this information with interest, the Committee requests the Government to keep it informed of developments with regard to the judicial outcome of this case.

Case No. 1719 (Nicaragua)

39. The Committee last examined this case, which concerns dismissals in the customs sector following a strike in May 1993, during its November 1997 meeting [see 308th Report, paras. 48 to 52]. On this occasion, the Committee recalled that it had appealed to the Government, with a view to encouraging a return to harmonious industrial relations, to endeavour to facilitate the reinstatement in their jobs of the UNE union leaders and members dismissed in the customs sector [see 304th Report, paras. 395 to 416].

40. In communications dated 8 January, 23 February and 4 May 1998, the National Union of Employees (UNE) complained that the Government did not comply with the recommendations formulated by the Committee in June 1996 and did not reinstate or compensate the workers dismissed in the customs sector. The complainant insisted on the fact that the workers dismissed following the strike amounted to 144, and amongst them were all the trade union leaders of the unions William Ruiz Martinez, Héroes y Mártires del Sur, Pablo López, Advana El Espino as well as the FETRAP Federation.

41. In communications dated 5 October 1998 and 25 January 1999, the Government states that harmonious industrial relations do exist in the customs sector and indicates that a collective agreement has been reached between the General Directorate of Customs and the Union of Customs Workers, a copy of which is attached.

42. The Committee takes note of this information. The Committee regrets that despite the time elapsed since its recommendations (June 1996), the parties concerned have not been able to reach an agreement on the reinstatement of the workers dismissed following the strike of 1993. The Committee is fully aware of the difficulties with respect to the reinstatement of workers who were dismissed nearly six years ago and therefore urges the Government to take all necessary measures to ensure that the parties concerned do reach an agreement on full compensation for the workers dismissed, in the case that reinstatement could prove impossible.

Case No. 1903 (Pakistan)

43. The Committee last examined this case at its June 1997 meeting [see 307th Report, paras. 39 to 41]. The Committee had requested the Government, with respect to the revocation of the decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union, to forward it a copy of the said decision delivered by the Industrial Relations Commission (NIRC) on appeal. Regarding the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee had requested the Government to keep it informed of the status of the labour court proceedings and any further appeal on this matter, and to forward to it a copy of the judgement as soon as it would be rendered.

44. In its communication dated 2 February 1999, the Government forwards a decision of the NIRC of 28 May 1997 which rules that the appeal concerning the revocation of the decision to suspend the Pak China Fertilizer Limited Employees' Union is accepted and that the case is remanded to the lower court and that a decision should be rendered within two months. The decision of the NIRC also mentions that the said union will continue to be suspended until the decision is rendered.

45. While taking note of this decision of 28 May 1997, the Committee observes that the Government had stated in its previous communication that the Registrar of Trade Unions had reinstated the union on 5 April 1997. Therefore, the Committee requests the Government to indicate what is the current status of the union and to confirm that it is able to carry out its activities normally. With regard to the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee urges the Government to indicate the status of the labour court proceedings and to forward it a copy of the relevant judgement as soon as it is rendered.

Case No. 1796 (Peru)

46. At its meeting of June 1998, the Committee had requested the Government to keep it informed of the outcome of the proceedings concerning the dismissals of the trade union leaders Delfín Quispe Saavedra, Dionisio Mejía Ramos and Iván Arias Vildoso.

47. In its communication of 4 February 1999, the Government states that: (1) the proceedings concerning Delfín Quispe Saavedra are still pending and the Government has been awaiting the delivery of the sentence by the Tribunal since 10 December 1998; (2) concerning the case of Dionisio Mejía Ramos, the Division of Constitutional and Social Law of the Supreme Court rejected, on 27 October 1997, the appeal lodged by the complainant and referred it back to the Civil Chamber on 6 March 1998. This proceeding is now closed and has been filed in the archives of the Labour Tribunal; (3) concerning the case of Iván Arias Vildoso, the Government is still awaiting the decision of the Supreme Court in this affair.

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

Case No. 1813 (Peru)

49. At its meeting in June 1998 [see 310th Report, paras. 41 to 43], the Committee requested the Government to keep it informed of the results of the proceedings concerning the death of trade unionists Alipio Chueca and Juan Marco Donayre Cisceros as a result of the shots fired by CORDECALLAO security staff (the Government had stated that three persons had been charged). In its communication of 23 December 1998, the Government states that there was sufficient evidence in the context of the legal proceedings to open a public hearing which began on 3 September 1998 and is still ongoing. The Committee notes this information and requests the Government to keep it informed of the outcome of the proceedings.

Case No. 1944 (Peru)

50. At its meeting of November 1998, the Committee made the following recommendations on the pending allegations [see 311th Report, para. 547]:

Recalling that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions, and in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom, the Committee requests the Government:

to take the necessary measures to ensure that Mr. Mickey Juán Alvarez Aguirre, who was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress in February 1996 is reinstated in his job without loss of acquired benefits and that he is once again able to exercise his trade union responsibilities rapidly and without impediment. It requests the Government to keep the Committee informed about the issues raised;
to take the appropriate measures to ensure that in future restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination;
concerning the refusal of the municipality of metropolitan Lima to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Committee trusts that the decision rendered in respect of the appeal made by the Federation of Peruvian Electricity and Energy Workers will reflect the principles of freedom of association and requests the Government to keep it informed of the outcome of the appeal as well as any element which would clarify the situation in respect of the legal requirements for the ISTED to be able to function as a higher professional training centre;
with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Committee requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.

51. In its communications of 9 December 1998 and 4 February 1999, regarding the dismissal of trade union leader Mickey Juán Alvarez Aguirre, the Government states that following the adoption of Acts 26546 and 26623, the judiciary was undergoing a process of restructuring which involved considerable staff reductions. Facing a real threat of weakening the administration of justice, it was decided not to give any follow-up to the communication of Mr. Alvarez Aguirre in which he was requesting his trade union leave of absence as Secretary of the Workers' Trade Union of the District of Lambayeque. The Government insists that this refusal was never used to carry out anti-union discrimination as the Committee had concluded. The decision of the President of the High Court of Lambayeque to refuse the trade union leave of absence and requesting the immediate reinstatement of Mr. Alvarez Aguirre was compulsory. This decision was not followed by Mr. Alvarez Aguirre, who limited himself to sending communications to the President of the High Court concerning the denial of granting him the said leave of absence. These communications were submitted to the Executive Commission which then notified once again Mr. Alvarez requesting him to reintegrate his post, but without any success. In any case, Mr. Alvarez Aguirre should have reintegrated his work post regardless of his right to lodge a complaint with regard to the denial to grant him his trade union leave of absence. Nevertheless, Mr. Alvarez Aguirre did not follow the orders of his superiors and abandoned without reasons his work post on 23, 24 and 25 February 1996, as well as from 8 April. Thus, the disciplinary procedure which followed was based on a serious breach of conduct (abandoning his work post) and did not amount to anti-union discrimination from the Government as it was alleged by the National Federation of Judiciary Workers. According to the Government, it did not constitute anti-union discrimination nor was it linked to his status as trade union leader. In the labour legislation, trade unionists are duly protected in the case of restructuring which involves staff reductions. In this regard, article 30 of Decree No. 25593 on labour relations provides that trade union protection guarantees that certain workers cannot be dismissed nor transferred to another work post of the same enterprise without a valid justification or without the consent of the worker involved. The consent of the worker is not required if the transfer does not prevent the trade union leader to exercise his trade union activities.

52. In this respect, the Committee recalls that the complainant had alleged (without the Government's denial) that Mr. Alvarez Aguirre had used his trade union leave of absence in conformity with an administrative decision of the Supreme Court (No. 023-A-87 D/GA/PS) which grants trade union leave of absence on the sole condition to inform the presidents of the committees concerned and the personnel office. In these circumstances, the Committee considers that the necessity to operate massive restructuring cannot be used by the Government as an excuse to refuse to grant a trade union leave of absence, and this is particularly true when the restructuring involves staff reduction and even more so in the case of a dismissal of a trade union leader who was using his trade union leave of absence. Therefore, the Committee once again requests the Government to take the necessary measures to ensure that Mr. Alvarez Aguirre is reinstated in his job without loss of acquired benefits.

53. Concerning the refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Government states that the municipality of metropolitan Lima has not yet rendered its decision concerning the appeal lodged by the Federation of Peruvian Electricity and Energy Workers. The Government declares that it will transmit to the Committee the decision as soon as it is handed down. The Committee is thus waiting for the decision to be rendered.

54. Finally, with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Government states that the final appeal lodged by the Federation of Peruvian Electricity is still pending. The Government declares that it will transmit the decision in question as soon as it is rendered. The Committee is thus awaiting the final decision to be handed down.

Case No. 1785 (Poland)

55. At its June 1998 meeting, the Committee had requested the Government to keep it informed of any progress concerning cash compensation to trade union organizations and assignations of immovables to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ). On that occasion, the Committee had noted the complexity of the question of divisions of assets of the former Trade Union Association as well as the objections of NSZZ "Solidarnosc" concerning various decisions and regulations of the Minister of Labour and Social Policy and the work of the Stock-Taking Commission [see 310th Report, paras. 53 to 65].

56. In a communication dated 1 October 1998, the Government had stated that the Minister of Labour and Social Policy had prepared and submitted on 29 June 1998, for interministerial consultations, the necessary draft amendment of the Act of 25 October 1990 (the Act of 25 October 1990) concerning the restitution of assets forfeited by trade unions and social organizations following the imposition of the martial law. The mentioned amendment proved necessary in view of the need for possibly urgent regulation of due non-cash liabilities of the state Treasury in result of:

the pronouncements by the Social Revindication Commission -- the total amounts due had already reached the level of almost PLN82 million (including statutory interests for delays accumulated before 31 July 1998);
execution of newly arising non-cash liabilities of the state Treasury.

57. The Government had indicated that the above-mentioned draft of the amending Act had also taken account of the expectations for the change of certain provisions of the Revindication Act, which had been expressed by NSZZ "Solidarnosc" during the preliminary consultations.

58. The Government had further indicated that, together with the above-mentioned draft amendment of the Revindication Act, a draft executory regulation of the Council of Ministers had been submitted for interministerial consultation. The regulation had been necessary for governing the practical side of the Treasury's liabilities. Both draft texts had been transmitted, in accordance with article 19 of the Trade Union Act, to NSZZ "Solidarnosc" and to the Polish Trade Union Alliance (OPZZ) seeking trade union opinion.

59. Finally, the Government had stated that the actual state of work on the mentioned draft texts meant that they would be examined by the Council of Ministers in autumn 1998 and that the draft Act would immediately be submitted to the Diet (Parliament). The executory regulation of the Council of Ministers would be issued directly after the provisions of the above-mentioned amending Act would come into force. In a communication dated 18 February 1999 the Government stated that the law amending the law of 25 October 1990 was adopted on 3 December 1998 and entered into force on 30 December 1998.

60. As regards the objections of NSZZ "Solidarnosc" that its vested rights had been violated by section 45 of the Trade Union Act, the matter was brought before the Constitutional Tribunal which rejected it on 3 December 1997. The Government also mentioned that NSZZ "Solidarnosc" had challenged the constitutionality of section 7 of the Act of 9 May 1997 amending the Trade Union Act and concerning Workers' Recreation Fund -- such fund being considered as enterprise assets pursuant to the Civil Code. The application of NSZZ "Solidarnosc" was granted by the Constitutional Tribunal on 3 June 1998 and by the Diet on 28 August 1998. The Parliament should adopt a new text on the assignation of Employees' Recreation Fund assets. In its communication of 18 February 1999, the Government specified that in December 1998 the Senate adopted a bill which was transmitted to the Diet.

61. The Committee takes note with interest of the detailed information provided by the Government and once again expresses the hope that all issues concerning trade union assets will be resolved in the near future and asks the Government to keep it informed in this regard.

Case No. 1581 (Thailand)

62. The Committee last examined this case at its November 1998 meeting when it noted that the State Enterprise Labour Relations Bill which has been referred to by the Government since 1993 had finally been adopted by the House of Representatives in the fall of 1998 but was being challenged before the Constitutional Court [see 311th Report, para. 89].

63. In a communication dated 4 February 1999, the Government indicates that on 12 November 1998 the Constitutional Court decided that the Bill was enacted contrary to the provisions of the present Constitution and the Bill therefore lapsed according to section 262, paragraph 3, of the Constitution. The Government stresses the efforts it has made to restore to state enterprise employees the right to organize and to bargain collectively and regrets that its attempts over the past years to secure the reform passage of the SELR Bill ended in November due to a determination based on legal technicalities that the Bill was unconstitutional. The Government reaffirms its commitment to reform the Bill and states that the Ministry of Labour and Social Welfare has immediately reintroduced the reform passage which has been approved by Cabinet and forwarded to the House of Representatives, where it passed its final reading on 20 January 1999 and was forwarded to the Senate. The Bill has now passed its first reading in the Senate and been referred to an ad hoc scrutinizing committee.

64. The Committee takes due note of this information. It must however recall that, during its examination of this case in November 1991, the Committee had noted with great concern the numerous and serious incompatibilities between the State Enterprise Labour Relations Act (SELRA) and the principles of freedom of association and urged the Government to take measures to repeal this Act without delay [see 279th Report, para. 482]. The Committee trusts that the necessary measures will be taken in the near future to amend the legislation so as to restore fully the right to organize and to bargain collectively to state enterprise employees and requests the Government to keep it informed in this regard.

Case No. 1895 (Venezuela)

65. At its June 1998 meeting [see 310th Report, para. 66], 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 noted that the judicial authorities had decided to release Mr. José Ramón Pacheco while the investigation continued, and requested the Government to keep it informed of the results of the criminal proceedings against the trade union officer for suspected falsification of documents. In its communication of 4 November 1998, the Government stated that the investigation is still going on since responsibility has not yet been determined, though there is some evidence that the commission committed an error, but the guilty parties have not yet been determined. The Committee takes note of this information, and requests the Government to keep it informed of the results of the judicial proceedings in question.

* * *

66. Finally, as regards Cases Nos. 1618 (United Kingdom), 1834 (Kazakhstan), 1837 (Argentina), 1843 (Sudan), 1849 (Belarus), 1850 (Congo), 1869 (Latvia), 1884 (Swaziland), 1886 (Uruguay), 1891 (Romania), 1900 (Canada/Ontario), 1914 (Philippines), 1918 (Croatia), 1921 (Niger), 1926 (Peru), 1937 (Zimbabwe), 1938 (Croatia), 1942 (China/Hong Kong), 1956 (Guinea-Bissau), 1957 (Bulgaria), 1969 (Cameroon), 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 received information concerning Cases Nos. 1698 (New Zealand), 1826 (Philippines), 1852 (United Kingdom), 1854 (India), 1862 (Bangladesh), 1890 (India), 1908 (Ethiopia), 1912 (United Kingdom/Isle of Man), 1914 (Philippines) 1945 (Chile) and 1966 (Costa Rica), which it will examine at its next meeting.

Case No. 1947

Definitive report

Complaint against the Government of Argentina
presented by
the Association of Aeronautical Personnel (APA)

Allegations: Obstruction of collective bargaining,
anti-union discrimination

67. The complaint in this case is contained in a communication from the Association of Aeronautical Personnel (APA) dated 21 November 1997. The Government sent its observations in communications dated 22 May and 6 and 28 October 1998.

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

A. The complainant's allegations

69. In its communication dated 21 November 1997, the Association of Aeronautical Personnel (APA) alleges that the enterprise Aerolíneas Argentina S.A. (Argentine Airlines Ltd.) set up a controlled cargo-handling undertaking (Aerohandling) to which workers of another enterprise operating at airports were transferred. After the APA decided to begin negotiations with the company with a view to concluding a collective agreement, the company, after much procrastination, delay and obstruction of the negotiations, finally appointed representatives who, however, did not respond to the proposal put forward by the trade union organization, did not meet with union representatives and did not recognize the union's rights.

70. The complainant organization adds that during the period of the negotiations, the company dismissed the union official, Sergio Irigoyen, who had been participating in the negotiations.

B. The Government's reply

71. In its communications of 22 May and 6 and 28 October 1998, the Government states that the dispute between the enterprise Aerohandling and the Association of Aeronautical Personnel (APA) ended with the signing of an agreement between the two parties; the trade union delegate Mr. Irigoyen had the agreement officially registered.

72. As regards the dismissal of Sergio Irigoyen, the Government supplies the following: (1) a copy of the ruling (No. 60) handed down by the National Labour Court of First Instance which excludes the union delegate from the terms of the guarantee set out in section 52 of National Act No. 23551 ("fuero sindical"); in the reasons given for the ruling, reference is made to the fact that the defendant did not contest the notification of the charge made against him by the employer enterprise (obstructing the work of other workers, verbal and physical assault, etc.), and consequently none of the allegations made by the enterprise and cited to justify the action taken against Mr. Irigoyen could be deemed to have been contested; (2) a copy of the decision by the Appeal Court concerning the appeal lodged by Mr. Irigoyen against the ruling of the lower court; this decision confirms the original ruling and states, among other reasons given for the decision, that Mr. Irigoyen says nothing concerning the events of 29 October 1997 in which he was involved; (3) a copy of the court ruling which notes the fact that Mr. Irigoyen withdraws his action against the employer enterprise for reinstatement; the ruling notes that Mr. Irigoyen expressly withdraws the action and waives any claim in respect of the measures taken by the company, which implies tacit recognition that the company is in the right.

C. The Committee's conclusions

73. The Committee notes that in the present case, the complainant organization alleges that the company Aerohandling obstructed and delayed the negotiations of a collective agreement and, during the period of the talks, dismissed a trade union delegate (Sergio Irigoyen) who was taking part in them.

74. As regards the allegation concerning the obstructive attitude of the company Aerohandling during the negotiations of a collective agreement, the Committee notes with interest the Government's statement to the effect that the dispute has ended with the signature of an agreement between the parties. This being the case, the Committee will not proceed with the examination of this allegation.

75. As regards the allegation concerning the dismissal of the trade union delegate Sergio Irigoyen during the period of collective negotiations in which he was participating at the company Aerohandling, the Committee notes the Government's statement to the effect that Mr. Irigoyen expressly withdrew his action for reinstatement before the judicial authority. The Committee also notes that previously, Mr. Irigoyen did not, when appearing before courts of various instance, contest the charges made against him by the employer enterprise (obstructing the work of other workers, verbal and physical assaults, etc.), nor did he respond expressly to the allegations made against him. This being the case, the Committee will not proceed with the examination of this allegation.

The Committee's recommendation

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

Case No. 1982

Definitive report

Complaint against the Government of Brazil
presented by
the Single Central Organization of Workers (CUT)

Allegations: Suspension of a trade union leader

77. The complaint in this case was submitted in a communication from the Single Central Organization of Workers (CUT) dated 4 August 1998. The Government sent its comments in a communication dated 20 October 1998.

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

A. The complainant's allegations

79. In its communication dated 4 August 1998, the Single Central Organization of Workers (CUT) alleges that, in flagrant violation of the principles of freedom of association, the management of the enterprise Volkswagen do Brazil Ltd. suspended Mr. Renan Cavalcante Santana, a member of the works council, and conducted an inquiry, claiming that he had committed a serious fault. The complainant organization indicates that Mr. Santana had been working in the enterprise for 25 years and was discharging his second mandate in the works council which had been established on the basis of a collective agreement. According to the complainant organization the enterprise argued that the trade union leader was trying to destabilize internal harmony by criticizing and questioning enterprise decisions in his capacity as trade union leader.

B. The Government's reply

80. In its communication dated 20 October 1998, the Government states that the parties to the dispute, the enterprise Volkswagen do Brazil Ltd. and Mr. Renan Cavalcante Santana, reached a settlement terminating Mr. Santana's contract of employment and regulating other related issues, which was ratified by the fifth Board of Conciliation and Judgement of San Bernardo del Campo. The settlement was concluded freely and spontaneously by the parties; the enterprise undertook to compensate Mr. Santana and to provide him with the instrument rescinding his contract, in order to enable him to withdraw his deposits from the length of service guarantee fund and apply to the competent authority for the unemployment insurance guide and the request for the payment of unemployment insurance. Following the payment of the compensation, the enterprise and the trade union leader would consider the contract of employment to be terminated. Lastly, the Government states that the settlement reached was endorsed by the judicial authorities in order for its legal and regulatory effects to apply. (The Government annexes to its reply a copy of the settlement record concluded by the parties before the Board of Conciliation and of the decision of the Regional Labour Court of the second region of San Pablo.)

C. The Committee's conclusions

81. The Committee observes that in this case the complainant organization alleged the suspension of the trade union leader, Mr. Renan Cavalcante Santana, from the Volkswagen do Brazil Ltd. enterprise for having criticized and questioned enterprise decisions in his capacity as trade union leader.

82. The Committee observes the Government's statements that: (1) the parties to the dispute reached a settlement ratified by the fifth Board of Conciliation and Judgement of San Bernardo del Campo; (2) the settlement was concluded freely and spontaneously by the parties; (3) the enterprise undertook to compensate Mr. Santana (53,200 reales) and to provide him with the instrument rescinding his contract, in order to enable him to withdraw his deposits from the length of service guarantee fund and apply to the competent authority for the unemployment insurance guide and the request for the payment of unemployment insurance; and (4) following the payment of the compensation, the enterprise and the trade union leader would consider the contract of employment to be terminated.

83. Given these circumstances, observing that the complainant organization has sent no additional information criticizing the court settlement concluded between the enterprise and the trade union leader, the Committee considers that there is no need to continue with an examination of this case.

The Committee's recommendation

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

Case No. 1987

Definitive report

Complaint against the Government of El Salvador
presented by
Communications International (CI)

Allegations: Refusal to recognize and grant legal
personality to various trade unions

85. This complaint is contained in a communication from Communications International dated 26 August 1998.

86. The Government sent its comments in communications dated 2 November and 17 December 1998.

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

A. The complainant's allegations

88. In its communication dated 26 August 1998, Communications International (CI) states that the Salvadoran Association of Workers of the National Telecommunications Administration, ANTEL (ASTA) is one of its affiliated organizations and has requested it to present a complaint against the Government of El Salvador for the violation of trade union rights.

89. The CI explains that on 27 August 1997, the ASTA-ASTTEL trade unions requested the authorities of the Ministry of Labour to recognize the legal existence of the National Union of Telecommunications and Related Unions (ATANTEL) and that on 2 September of the same year the Ministry of Labour refused to recognize ATANTEL contending that the National Telecommunications Administration (ANTEL) was an independent public institution and that it was illegal to recognize trade unions that were not enterprise-based. The members of ATANTEL lodged an application for reconsideration before the same ministry, which was in turn rejected. In September/October 1997 amendments were made to the bill for the privatization of ANTEL. This delayed decisions on ATANTEL's new requests for legal recognition. During this period, Communications International and its affiliates in the region sent various messages of solidarity to the authorities of El Salvador in support of the telecommunications' workers and their right to organize.

90. According to the CI, on 29 December 1997 the winding up of ANTEL began and all its workers were paid and dismissed, then later contracted by the new enterprise, Telecommunications Company of El Salvador (CTE S.A. de C.V.). However, on 2 January 1998, 72 workers were dismissed, all of whom were leaders or former leaders of the ASTA-ASTTEL, ATTES and SINTEL trade unions. The enterprise stated that these workers were opposed to the privatization process. It justified the dismissals by claiming that the workers in question were not working efficiently, given that they spent their time on other activities which were incompatible with the enterprise's new functions (i.e. trade union activities). The complainant organization adds that a group of workers from the ASTA-ASTTEL unions convened a meeting to establish a trade union within the enterprise. The National Telecommunications Administration (ANTEL) was dissolved and wound up in accordance with Decree No. 53, as amended. All its assets and liabilities were transferred to the Telecommunications Company of El Salvador, a limited liability company (CTE S.A. de C.V.) and to Telecommunications International, also a limited liability company (INTEL S.A. de C.V.). On 13 February 1998, the Ministry of Labour rejected the request for legal recognition made by the ASTA-ASTTEL workers. Consequently, on 22 February 1998, 39 workers held a meeting and approved the establishment of a trade union called ASTTEL. The new request for recognition was also rejected by the Ministry of Labour, which claimed that the abbreviation ASTTEL had nothing to do with the official name of the union (Works Union of Telecommunications Workers). On 1 May 1998, 44 workers met and approved the establishment of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador S.A. de C.V. (SUTTEL), but on 24 June 1998 the Ministry of Labour rejected the legal existence of that union, arguing that national legislation does not allow the organization of trade unions until six months have passed since a prior request for recognition.

91. The CI stresses that although the workers have used all possible means provided by law, the authorities have found a variety of arguments to reject the legal existence of the trade union and states that the workers have submitted a legal claim to the Supreme Court of Justice of El Salvador.

92. In the view of the CI, the behaviour of the Ministry of Labour of El Salvador in this case -- and possibly also the relevant legal provisions -- are incompatible with the right of workers to establish organizations of their own choosing, without prior authorization, and the dismissal of workers from the enterprise constitutes an act of anti-union discrimination.

B. The Government's reply

93. In its communication dated 2 November 1998, the Government states that on 7 August 1997 the Chairman of the provisional executive committee of the Union of Workers in Telecommunications and Related Industries (ANANTEL), requested in writing that it be granted legal personality. According to its certificate of establishment it was set up on 31 July 1997 by 46 workers from the National Telecommunications Administration, four workers from the El Salvador Information Service Agency and two workers from the José Simeón Cañas Central American University radio station. On 2 September 1997 the request to grant legal personality to this union was denied because the workers of independent public institutions -- such as the National Telecommunications Administration (ANTEL) -- can only form works unions, in accordance with clause 20, section 209 of the Labour Code, which provides that "a works union consists of workers employed in the same enterprise, commercial establishment or independent public institution". The application by the provisional executive committee for reconsideration of that decision was dismissed because the workers of the National Telecommunications Administration (ANTEL) were not being refused the right to set up a trade union but were simply being told that the Labour Code stipulates that they should establish themselves as a works union. In a decision dated 27 April 1998 the office of the procurator for the defence of humans rights exonerated the Ministry of Labour and Social Welfare from any responsibility in this matter.

94. The Government indicates that section 2 of the Privatization Act of the National Telecommunications Administration provides as follows: "The division of ANTEL will be carried out by transferring its assets, rights and liabilities to the following limited liability companies: Telecommunications Company of El Salvador, a limited liability company, which could use the trade name of ANTEL, and which in future will be abbreviated to CTE S.A. de C.V.; and Telecommunications International, a limited liability company, which in future will be abbreviated to INTEL S.A. de C.V. Both enterprises will provide public telecommunications services. These companies will be considered for all legal purposes to be private companies regulated by the provisions of the above Act, the Commercial Code and other applicable national legislation. The wording of the Privatization Act uses the expression "the companies" for these enterprises.

95. Section 43 of the above Act provides as follows: "Once the procedure indicated in the two previous sections has been verified, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL, except those working at the ANTEL hospital, who will retain at least the same salaries with their new employer. If after these contracts have been concluded, any of the workers thus contracted are dismissed on any of the grounds for termination of contract with liability for the employer established in the Labour Code, the employer will pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service. The workers providing services at the ANTEL hospital and who have not been retained by the ISSS will receive a bonus of an additional 25 per cent to that established in section 41 of this Act".

96. The Government adds that on 5 January 1998 the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) requested that legal personality be granted to this union which, according to its certificate of establishment, was founded on 2 January 1998 by 43 workers from CTE S.A. de C.V. An inspection was carried out at CTE S.A. de C.V. to ascertain whether the founders of the union were working at 9 a.m. on 2 January 1998. The inspection report established that: (a) the Works Union of Telecommunications Workers of El Salvador (ASTTEL) was established on the basis of a notarial certificate on the premises of the Salvadoran Association of Telecommunications Workers, with Dr. Lilian Guadrón acting as the attesting notary; (b) on the day the notarial certificate was executed (2 January 1998), which was when CTE S.A. de C.V. began its operations, ten of the union's founders did not provide any services to CTE S.A. de C.V. and consequently the employment relationship did not come into being as they did not even turn up for work that day, therefore labour legislation is not applicable to them and they do not constitute workers; (c) a further 20 founders of the trade union were not present at 9 a.m. on 2 January 1998 at the place where, according to the notarial certificate, the constituent meeting of the trade union was held. These persons categorically stated that they had signed the certificate of establishment on a different date and in a different place, not during the constituent meeting of the union, which explains why their signatures are on the certificate although they did not attend. The report also reveals other anomalies and irregularities in the certificate which clearly indicate intentional falsification; (d) five founders received the special compensation referred to in section 43 of the Privatization Act of the Telecommunications Administration following their dismissal on 2 January 1998, as evidenced by the corresponding liquidation documents issued in accordance with the provisions of section 402 (20) of the Labour Code, and were therefore no longer employees of CTE S.A. de C.V. at the time when the certification and other documents were submitted.

97. Furthermore, the notarial certificate infringed legislation in the following ways, inter alia: (a) the occupation or trade of the alleged executing parties was not recorded, in violation of section 32, No. 40 of the Notary Act; (b) instead of recording their occupation or trade, in the preamble to the certificate, under general information relating to the executing parties, the notary states that they are workers of CTE S.A. de C.V., thus infringing section 32, No. 60, which provides that "the notary shall not put anything attributed to the appearing parties with which they have not expressly agreed" and at no time, as seen in the document itself, did the executing parties make such a statement to the notary; (c) section 32, No. 90 was also violated, which provides that "involuntary deletions, amendments, insertions, crossings out and any other corrections shall be noted and certified in full at the end of the instrument, in the presence of the appearing parties and above the signatures" and in the notarial certificate in question the involuntary deletions -- of the names of both the notary and the trade union -- were not certified, which automatically renders the document invalid under the provisions of section 263 of the Code of Civil Procedure, which section 602 of the Labour Code expressly stipulates to be applicable to industrial procedures; and (d) section 32, No. 10 was also violated, which stipulates that "the notary shall explain to the executing parties the legal effects of the certificate or contract and note that this has been done in the instrument", yet there is no indication in the certificate that the legal effects of the instrument were explained to the executing parties and nothing was recorded to this effect; (e) the provisions of section 51 of the Notary Act were not fulfilled as the notary did not sign any of the sheets that comprise the notarial certificate and the stamp that should be at the top of sheet No. 3 is missing.

98. On the basis of all the above considerations and the legal provisions cited, and given the lack of the legal quorum necessary to establish an occupational association as stipulated in section 211 of the Labour Code, the Ministry of Labour and Social Welfare decided to "deny the request for legal personality made by the Works Union of Telecommunications Workers of El Salvador".

99. The Government states that on 23 February 1998, the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) -- a trade union which had been established before a notary at 9 a.m. on 22 February 1998 -- requested that the trade union be granted legal personality. On 30 March 1998 a decision was handed down which stated that, according to the records, on 2 January 1998 an application had been made to establish the Works Union of Telecommunications Workers of El Salvador; the granting of legal personality to that trade union was denied on the grounds listed in the decision handed down by the Ministry of Labour on 11 February 1998; on 22 February 1998 an application was made to establish another trade union with the same name and address as the previous one; its request to be granted legal personality was submitted to the Ministry of Labour on 23 February 1998 by a different person acting as chairman of the provisional executive committee, in violation of the provisions of section 248 of the Labour Code which stipulates "a subsequent application to establish a trade union may only be made six months after the previous one".

100. In addition, this trade union was founded by 39 persons, 14 of whom had been involved in establishing the previous one; a further four were employees in positions of responsibility and one was the employers' representative of the Telecommunications Company of El Salvador S.A. de C.V. Both these circumstances, either together or individually, reduce the number of founding members to less than 35 persons, infringing the provisions of section 211 of the Labour Code which provides that "any workers' union requires a minimum of 35 members to be set up and operate".

101. Therefore, for the reasons given and the legal provisions cited, the Ministry of Labour denied the request for the granting of legal personality to the Works Union of Telecommunications Workers of El Salvador.

102. On 28 May 1998, the Government continues, three members of the provisional executive committee of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador (SUTTEL) requested that their trade union be granted legal personality. On 17 June 1998 an administrative decision was handed down which states that under the relevant legal provisions it was not permitted to make a further application to establish the union as six months had not passed since the application had been made to establish the Works Union of Telecommunications Workers of El Salvador, and neither was any reference made to the purpose of the union. For the reasons given and the legal provisions cited, the Ministry denied the granting of legal personality to SUTTEL.

103. On 30 June 1998 an administrative decision declared inadmissible the request made by three members of the provisional executive committee of this trade union to reconsider its request for legal personality as, according to the Code of Civil Procedure, that request should have been made on the day of or the day following the contested decision.

104. Lastly, the Government states that on 7 September 1998 the Chairman and Vice-Chairman of the provisional executive committee of the Works Union of Telecommunications Employees of El Salvador (SITTEL), founded at 9 a.m. on 23 August 1998, requested that the trade union be granted legal personality. This request is still pending.

105. As regards the allegations concerning the dismissal of 72 workers on 2 January 1998, all of whom were leaders or former leaders of the trade unions ASTA, ASTTEL, ATTES and SINTEL, the Government refers in its communication dated 17 December 1998 to a communication from the Telecommunications Company of El Salvador, the contents of which is summarized below.

106. According to the Privatization Act of the National Telecommunications Administration, the employment relationships of all the ANTEL staff ended on 31 December 1997 when the assets, rights and liabilities of ANTEL were transferred to CTE S.A. de C.V. and all workers were paid the corresponding types and amounts of compensation, annual bonuses and holiday pay established in ANTEL's privatization provisions. These payments were recorded in documents where each of the compensated workers confirmed the termination of his or her employment relationship, stating that ANTEL had fully met the obligations arising from the Privatization Act of the National Telecommunications Administration, declaring it to be free from any responsibility of an industrial nature and releasing it from further obligations. Consequently, on 31 December 1997 all ANTEL workers stopped work, were legally compensated and ANTEL ended its operations. The payments in question were officially investigated by the Court of Audit of the Republic, as no payment could be made that was not stipulated by law. ANTEL fully concluded its activities.

107. The compensation payments made to the 72 persons referred to by the complainant organization amounted to a total of 7,353,113 colons and 91 centavos. Section 43 of the above-mentioned Privatization Act stipulates that "once the procedure outlined in the previous two sections has been carried out, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL. If after concluding these contracts any of the workers thus contracted are dismissed on the grounds for termination of contract with liability for the employer set out in the Labour Code, the employer shall pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service". It was in keeping with this legal provision that CTE S.A. de C.V. contracted all the former workers of ANTEL in new employment relationships, entirely independent of and with no connection whatsoever to the previous one. The contracted workers included the workers mentioned by the complainant organization. Following their dismissal each of them was paid special compensation equivalent to the sum of 18 months' salary, except for two who did not collect their compensation, but it remains available for them. CTE S.A. de C.V. paid the 72 workers a total amount of 5,185,226 colons and 90 centavos. Each of the workers signed the corresponding confirmation of receipt on the form that the general directorate of the labour inspectorate provides for this purpose, in accordance with section 402 (2) of the Labour Code, confirming the termination of their individual contracts of employment, stating that CTE S.A. de C.V. had fully complied with the provisions of section 43 of the Act, each of them declaring said company to be free of any responsibility of an industrial nature. Dismissal as grounds for the termination of individual employment contracts is regulated by sections 55 et seq. of the Labour Code and originates from section 38, No. 11 of the Constitution of the Republic, according to which the Labour Code "shall in particular include the following rights (...) 11. An employer who dismisses a worker without valid grounds is required to compensate him in accordance with the law".

108. The conclusion to be drawn from all the above is that there has been no violation of trade union rights.

C. The Committee's conclusions

109. The Committee observes that in the framework of the privatization process of the National Telecommunications Administration (ANTEL) the complainant organization has alleged: (1) the refusal to recognize the trade union ATANTEL in September 1997; (2) the refusal to recognize another trade union set up by a group of workers from ASTA-ASTTEL on 13 February 1998; (3) the refusal to recognize a further trade union called ASTTEL set up on 22 February 1998; (4) the refusal to recognize a trade union called SUTTEL on 24 June 1998 and (5) the dismissal of 72 workers, all of whom were leaders or former leaders of the trade unions ASTA-ASTTEL, ATTES and SINTEL, on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the enterprise Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred.

110. The Committee notes that according to the Government: (1) the trade union ATANTEL was not recognized by the authorities because the workers of the former ANTEL did not set themselves up as a works union, which was a requirement as ANTEL was an independent public institution; of the 52 founders six were working in bodies other than ANTEL; (2) the trade union ASTTEL was not recognized because on the day it was established ten founders did not fulfil their work obligations, 20 did not attend the constituent meeting, five had received the special compensation provided in ANTEL's Privatization Act and had thus lost the status of employees. Furthermore, the notarial certificate contained various legislative infringements (the occupation or trade of the founders was not stated, the involuntary deletions of the names of the notary and the union were not noted down, the notary had not signed the individual sheets of the notarial certificate and the stamp was missing on one sheet); there was not the necessary quorum of workers/founders; (3) the trade union ASTTEL was again refused legal personality at a later date owing to the lack of the legal quorum that section 211 of the Code establishes, which is a minimum of 35 members (of the 39 founders, 14 had participated in setting up the previous trade union, four others were employees in positions of responsibility and one was an employers' representative) and furthermore because section 248 of the Labour Code provides that "a subsequent application to establish a trade union may only be made six months after the previous one"; (4) the application to establish the trade union SUTTEL was considered to be inadmissible and the granting of its legal personality was denied because six months had not passed since the application had been made to establish the trade union ASTTEL (whose legal personality had been denied); subsequently the request by three founders of SUTTEL to reconsider this administrative decision was dismissed as inadmissible as it did not comply with the time limit. The Committee also notes that the request for legal personality submitted by the trade union SITTEL on 7 September 1998 is still pending but it observes that this matter was not raised by the complainant organization.

111. The Committee notes that between September 1997 and June 1998 the authorities refused to grant legal personality to several trade unions which tried to set themselves up within ANTEL and in one of the two companies which acquired ANTEL's rights and liabilities following its privatization (Telecommunications Company of El Salvador S.A. de C.V.). One of these trade unions was twice refused legal personality. The Committee observes that the grounds given for refusing legal personality include: trying to establish a union which did not constitute a works union (but instead included workers from various institutions) in an independent public institution where only works unions are authorized; the lack of the minimum number of members stipulated by law -- i.e. 35; the legal impossibility of establishing a new trade union until six months have passed since an application was made to establish a previous one (even if it did not obtain legal personality); and non-compliance with requirements of form in the notarial certificate documenting the constituent meeting of the trade union. In the Committee's opinion, these grounds represent serious obstacles to trade union registration. In this respect, the Committee draws to the Government's attention that such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 244].

112. In this respect, the Committee has considered that "although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations" [see Digest, op. cit., para. 248]. In the Committee's view, it appears in the present case that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality).

113. In view of the above, the Committee concludes that the legislation violates the principles of freedom of association and regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador S.A. de C.V. The Committee therefore urges the Government to take measures with a view to amending legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate. Lastly, as regards the trade union SITTEL, the establishment of which is still pending (according to the Government), the Committee regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union.

114. With respect to the allegation concerning the dismissal of 72 workers (all of whom were leaders of ASTA-ASTTEL, ATTES and SINTEL) on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred, the Committee notes the Government's statements that: those concerned were paid the corresponding compensation and benefits, these persons accepted them and confirmed in writing the termination of their employment relationship on 31 December 1997; subsequently, in accordance with the Privatization Act they were contracted by the new enterprise and dismissed on 2 January 1998 on the grounds for termination of contract with liability for the employer established in the Labour Code, as provided in the Privatization Act, which stipulated further compensation for such an eventuality (in the case in point this was accepted by 70 of the 72 workers, who declared the enterprise to be free of any responsibility); the workers who did not accept the compensation were Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González. In this connection, the Committee observes that the Government has not denied the status of trade union leaders or former leaders of the 72 dismissed workers or that the dismissal was based on the grounds for termination of contract with liability for the employer, which does not call for the grounds for the dismissal to be cited.

115. In view of the above, the Committee deeply regrets these dismissals and calls the attention of the Government to the fact that proprietorial changes should not directly or indirectly threaten unionized workers and their organizations. [Digest, op. cit., para. 715]. The Committee also points out that in cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) [see Digest, op. cit., para. 960]. Likewise, in a previous case in which the Government considered the dismissal of nine trade union leaders to be part of restructuring plans, the Committee emphasized the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest, op. cit., para. 961].

116. This being the case, given that 70 of the 72 dismissed trade union leaders or former leaders accepted the legal compensation, the examination of the case will only proceed with respect to the two who did not accept it. The Committee requests the Government to take steps with a view to reinstating these trade union leaders (Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González) in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.

The Committee's recommendations

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

(a) Observing that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality), the Committee:

concludes that the legislation seriously infringes the principles of freedom of association;
regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in the process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador S.A. de C.V.; and
regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union;
urges the Government to take measures with a view to amending the legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate.

(b) The Committee requests the Government to take steps with a view to reinstating the trade unions leaders Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.

Case No. 1927

Definitive report

Complaint against the Government of Mexico
presented by
the Trade Union of Workers of
the Roche Syntex Group (STGRS)

Allegations: Acts of anti-union discrimination
within the framework of collective bargaining
with a minority trade union

118. The Committee examined this case at its meeting in November 1997 and presented an interim report [see the 308th Report of the Committee, paras. 541-555, approved by the Governing Body at its 270th Session (November 1997)].

119. The Government sent new observations in communications dated 10 March and 10 November 1998.

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

A. Previous examination of the case

121. At its meeting in November 1997, the Committee formulated the following conclusions and recommendations on the allegations that remained pending [see the 308th Report, paras. 550-554]:

The Committee notes that in this case the complainant (Trade Union of Workers of the Roche Syntex Group (STGRS)) alleges that the Grupo Roche Syntex de México S.A. de C.V. enterprise negotiated a collective agreement covering all the workers with a minority trade union ("Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS)), as well as 19 cases of anti-union dismissal of trade union officials and members and threats of dismissal against workers of the enterprise to force them to leave the complainant organization.

As regards the allegation concerning the conclusion of a collective agreement covering all the workers with a minority trade union (the SPJSTS) to the detriment of the complainant, the Committee notes that the Government states that on 27 May the minority trade union (SPJSTS) and the Grupo Roche Syntex de México enterprise terminated the collective agreement which they had concluded, recognizing that the majority trade union representation corresponded to another trade union organization; and that subsequently the majority trade union (Trade Union of Workers of the Grupo Roche Syntex, the complainant in this case) signed a wage review agreement with the enterprise on 6 June 1997 (after the presentation of the complaint to the Committee). In these circumstances, the Committee requests the Government to provide a copy of this agreement. The Committee also requests the Government to provide specific information with respect to the relations between the two existing unions in the enterprise and any disputes that may exist.

As regards the allegation concerning the anti-union dismissal of 19 trade union members (including four members of the complainant's executive committee), the Committee notes that the Government states that the trade union organization requested the intervention of the Secretariat of Labour and Social Insurance and that "the negotiations did not produce any positive result because of the distant relationship which had existed for a number of months between the trade union and the enterprise, and which deteriorated during the course of the annual wage review". In this respect, the Committee requests the Government to provide detailed information and observations concerning the facts that led to the dismissals and the allegations of their anti-union nature.

As regards the allegation concerning the threats of dismissal by the management of the Grupo Roche Syntex de México S.A. de C.V. enterprise to make the workers leave the complainant and join the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS), the Committee regrets that the Government has not furnished observations on this matter. In these circumstances, the Committee requests the Government to forward its observations on this matter as soon as possible.

Finally, regarding the dismissal of Mr. Eladio Peréz Rubí, General Secretary of the complainant organization which occurred, according to the allegations, as a result of the submission of the present complaint, the Committee notes the Government's indication that it was not aware that this worker had been dismissed and that he was not the General Secretary of the complainant organization at the time that he was allegedly dismissed. In these circumstances, the Committee requests the Government to carry out an investigation into the facts which led to the dismissal of Mr. Eladio Peréz Rubí from the Roche Syntex enterprise and to keep it informed in this respect. The Committee also requests the Government to indicate whether the worker in question has filed an appeal before the court.

B. The Government's observations

122. In its communication of 10 March 1998, the Government provides a copy of the wage review agreement which is part of the collective labour agreement concluded on 6 June 1997 between the Grupo Roche Syntex de México S.A. de C.V. enterprise and the Trade Union of Workers of the Roche Syntex Group and ratified by the Federal Conciliation and Arbitration Board. The provisions of the agreement in question are as follows:

First. The parties recognize mutually and reciprocally their respective legal status granted under the present agreement in respect of all the legal effects of said agreement and any others that may apply.

Second. The enterprise hereby increases the daily wage rates for unionized workers who provide services at the pharmaceutical plant situated on the Mexico City-Toluca Highway, No. 2822, suburb Lomas de Bezares, division Miguel Hidalgo, Federal District, and that the agreement shall cover members of the Trade Union of Workers of the Roche Syntex Group (24 per cent of the total workforce) retroactively from the first day of June 1997.

Third. The enterprise undertakes to comply with and respect the terms of this collective agreement in its entirety and in all its detailed provisions, without prejudice to any possible revisions of said collective agreement.

Fourth. The trade union acknowledges that the company by virtue of its various activities and plants is entitled to enter into various collective labour agreements in areas, plants and localities distinct from those covered by the present collective agreement, and that it is specifically the pharmaceuticals plant situated on the Mexico City-Toluca Highway, No. 2822, suburb Lomas de Bezares, division Miguel Hidalgo, Federal District, employing 157 workers, to which this agreement refers.

Fifth. By virtue of the preceding provisions, the trade union withdraws its claims and its declaration of strike action addressed to the company on 28 April 1997.

Sixth. The parties undertake to ratify the present agreement before the federal Conciliation and Arbitration Board (dossier No. III-2298/97) and to apply for official approval of the agreement as not containing any provisions contrary to morals, law and good conduct, the agreement being subject to examination by the Board in all its parts as a binding award equivalent to a matter adjudged.

The parties, having read the present agreement and being aware of its contents and legal scope, have declared their full and unreserved approval of the same and sign it as the expression of their respective wishes.

123. In its communication of 10 November 1998, the Government states that any potential disputes between the Trade Union of Workers of the Roche Syntex Group and the "Justo Sierra" Progressive Trade Union never materialized, since the latter on 27 May 1997 terminated the collective agreement which it had concluded with the company (the collective agreement reproduced in the preceding paragraph and signed by the Trade Union of Workers of the Roche Syntex Group dates from 6 June 1997).

124. As regards the reasons for the dismissals of 19 officials of the Trade Union of Workers of the Roche Syntex Group and their allegedly anti-union nature, the Government states that to its knowledge, the company decided to eliminate the storage, stocks, packing, loading and delivery departments. The workers and the union opposed this move, while the company proposed to suppress posts in accordance with the law. The Labour and Social Security Secretariat promoted and participated in conciliation meetings aimed at bringing the parties together, without any positive results. These facts suggest that failure to reach an agreement on the suppression of posts was the reason for the dismissal of the workers, who retained the right as individuals to put forward claims before the Federal Conciliation and Arbitration Board on grounds of unjustified dismissal by the company. The reasons for the dismissals were therefore not anti-union in nature but based on a failure by the parties to reach an agreement. Furthermore, not all the workers involved were trade union officials, and those who were retained their trade union posts until 3 June 1997, when new elections were held for the union's executive. The trade union posts were preserved, since section 376, paragraph 2 of the Federal Labour Act provides that "Members of the union executive who are dismissed by the employer or who resign for reasons attributable to the employer shall continue to exercise their functions ...".

125. With regard to the allegations of threats of dismissal by the company to force workers to leave the complainant organization and join the "Justo Sierra" Progressive Trade Union, the Government states that there has unquestionably been a misinterpretation of the information supplied in its previous reply, since the potential dispute with the "Justo Sierra" Progressive Trade Union never materialized as a result of the decision by that union and the company to end collective labour relations, as has already been indicated. It follows that the alleged threats of dismissal by the company to force workers of the Trade Union of Workers of the Roche Syntex Group to join the "Justo Sierra" Progressive Trade Union did not take place.

126. As regards the reasons for the dismissal of Mr. Eladio Peréz Rubí, the Government states that he was not in fact dismissed but resigned from his position in the company on 27 June 1997. According to Mr. Rubí's own letter (a copy of which is supplied by the Government), he resigned of his own accord and in his own interests. As a result of his resignation and in accordance with the Federal Labour Act, he received a settlement from the company with which he was entirely satisfied and waived any further claims.

C. The Committee's conclusions

127. In the present case, the complainant organization (the Trade Union of Workers of the Roche Syntex Group) had alleged that the Grupo Roche Syntex de México S.A. de C.V. enterprise negotiated a collective agreement for all the workers with a minority trade union, namely, the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS), that 19 anti-union dismissals of trade union officials and members took place as well as the dismissal of the trade union official Mr. Eladio Peréz Rubí, and that there were threats to dismiss workers at the company to force them to leave the complainant organization.

128. The Committee observes that the collective labour agreement concluded between the Grupo Roche Syntex de México S.A. de C.V. and the "Justo Sierra" Progressive Trade Union (which according to the complainant organization was a minority union) was concluded on 4 March 1997 [see the 308th Report, para. 543]. The Committee takes note of the Government's statement that this collective agreement was terminated on 27 May 1997 and that the complainant organization (the Trade Union of Workers of the Roche Syntex Group) and the company signed a wage review agreement on 6 June 1997 which was ratified before the Federal Conciliation and Arbitration Board; under the terms of that agreement, provision is made for an increase in wages and the trade union (the complainant organization in the present case) withdraws its claims and its declaration of strike action. The Committee also notes that according to the Government, no dispute between the complainant union and the "Justo Sierra" Progressive Trade Union ever materialized, since the latter and the company together decided to end their collective relations, so that, according to the Government, it follows that there were no threats of dismissal by the company to force any workers to join the "Justo Sierra" Progressive Trade Union. This being the case, since the parties involved have resolved the complaints initially made concerning the conclusion of a collective agreement with a minority trade union, the Committee will not proceed with the examination of these allegations.

129. As regards the alleged anti-union dismissal of 19 persons who were officials or members of the complainant organization (the Trade Union of Workers of the Roche Syntex Group), the Committee notes the Government's statement that: (1) the reasons which gave rise to the dismissals were not anti-union in character but were connected with the company's decision to eliminate the storage, stocks, packing, loading and delivery departments; (2) the dismissals could in any case be referred to the Federal Conciliation and Arbitration Board; (3) not all the persons dismissed were trade union officials, and those who were, kept their trade union posts until new elections were held for the union executive on 3 June 1997. Under these circumstances, the Committee will not proceed with the examination of these allegations.

130. As regards the alleged dismissal of union official Mr. Eladio Peréz Rubí, the Committee notes the Government's statement that he was not dismissed but resigned from his position in the company on 27 June 1997 and waived any further claims. The Committee has taken note of Mr. Rubí's letter (a copy of which was supplied by the Government) confirming these statements.

The Committee's recommendation

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

Case No. 1967

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

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

Allegations: Refusal by the authorities to recognize the
affiliation of a federation to a trade union central

132. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 20 May 1998. The Government sent observations in a letter of 29 October 1998.

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

A. The complainant's allegations

134. In its communication dated 20 May 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that the Government of Panama has refused to recognize, and disregards the affiliation of, the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central; this is in breach of the Labour Code and other national laws as well as of ILO Convention No. 87 which, under no circumstances, empower the administrative authorities to refuse registration of a workers' federation with a central labour organization.

135. The ICFTU seeks the repeal of resolution No. 042-DOS-97 of 29 April 1997, which contains a decision not to register FENASEP's application for affiliation to the Joint Trade Union Central. The text of the resolution reads as follows:

The Chief of the Labour Organizations Department, acting on behalf of the Directorate General of Labour,

Considering:

That, on 18 March 1997, the Joint Trade Union Central requested this Department to register as an affiliate member the National Federation of Associations and Organizations of Public Servants (FENASEP);

That private sector workers and their organizations are governed by the Labour Code whereas public servants and their associations are governed by the Administrative Code, with the exception of cases foreseen in specific laws;

That, following an examination of the documentation submitted, the fact was noted that it did not meet the requirements of the Labour Code whereas specific standards exist which gover