241st REPORT Paragraphs Pages Introduction 1-23 1-7 Cases not calling for further examination 24-48 8-14 Case No. 1305 (Costa Rica): Complaint presented by the National Association of Public Employees against the Government of Costa Rica 24-36 8-11 The Committee's conclusions 33-35 10-11 The Committee's recommendation 36 11 Case No. 1336 (Mauritius): Complaint presented by the Federation of Progressive Unions against the Government of Mauritius 37-48 11-14 The Committee's conclusions 45-47 13-14 The Committee's recommendation 48 14 Paragraphs Pages Cases in which the Committee has reached definitive conclusions 49-386 14-174 Case No. 1040 (Central African Republic): Complaints submitted by the International Confederation of Free Trade Unions and the General Union of Central African Workers against the Government of the Central African Republic .. 49-84 14-22 The Committee's conclusions 76-83 20-22 The Committee's recommendations 84 22 Cases Nos. 1098, 1132, 1254, 1257, 1290, 1299 and 1316 (Uruguay): Complaints presented by several trade union organisations against the Government of Uruguay 85-96 23-26 The Committee's conclusions 94-95 25 The Committee's recommendations 96 26 Cases Nos. 1172, 1234, 1247 and 1260 (Canada): Complaints presented by the Canadian Labour Congress, the World Confederation of Organisations of the Teaching Profession and the Service Employees International Union against the Government of Canada (Ontario), by the Canadian Labour Congress on behalf of the Alberta Union of Provincial Employees against the Government of Canada (Alberta), by the Confederation of Alberta Faculty Associations against the Government of Canada (Alberta) and by the Canadian Labour Congress on behalf of the Newfoundland Association of Public Employees against the Government of Canada (Newfoundland) . 97-155 26-90 The Committee's conclusions on Case No. 1172/Ontario 109-121 29-31 The Committee's recommendations 122 31 The Committee's conclusions on Case No. 1234/Alberta 123-127 32-33 Recommendations of the Committee 128 34 The Committee's conclusions on Case No. 1247/Alberta 129-139 34-38 The Committee's recommendations 140 38 ii 8313n Paragraphs Pages The Committee's conclusions on Case No. 1260/Newfoundland 141-154 39-42 The Committee's recommendations 155 42 Annex 43 Case No. 1285 (Chile): Complaint presented by the National Trade Union Co-ordinating Body against the Government of Chile 156-215 115-130 The Committee's conclusions 169-170 118 176 120 183-184 122 190-192 124 202-204 126-127 211-213 129 The Committee's recommendations 215 130 Case No. 1287 (Costa Rica): Complaint presented by the National Federation of Electrical and Postal Communications Employees against the Government of Costa Rica 216-229 131-135 Conclusions of the Committee 224-228 133-135 Recommendations of the Committee 229 135 Case No. 1310 (Costa Rica): Complaint submitted by the World Confederation of Organisations of the Teaching Profession against the Government of Costa Rica 230-248 135-139 The Committee's conclusions 243-247 138-139 The Committee's recommendations 248 139 Case No. 1291 (Colombia): Complaint submitted by the Trade Union Confederation of Colombian Workers (CSTC) against the Government of Colombia 249-262 140-143 The Committee's conclusions 259-261 142 The Committee's recommendations 262 143 Case No. 1293 (Dominican Republic): Complaints presented by the Unified Workers' Confederation and the General Confederation of Workers against the Government of the Dominican Republic 263-274 143-146 The Committee's conclusions 272-273 145 8313n iii Paragraphs Pages The Committee's recommendations 274 146 Case No. 1306 (Mauritania): Complaint submitted by the International Confederation of Arab Trade Unions against the Government of Mauritania 275-291 146-148 The Committee's conclusions 285-290 148 The Committee's recommendations 291 148 Case No. 1317 (Nicaragua): Complaint presented by the International Organisation of Employers against the Government of Nicaragua 292-311 149-153 The Committee's conclusions 304-310 152-153 The Committee's recommendations 311 153 Case No. 1318 (Federal Republic of Germany): Complaint presented by the German Workers' Confederation against the Government of the Federal Republic of Germany 312-340 154-161 The Committee's conclusions 333-339 159-160 The Committee's recommendations 340 161 Case No. 1323 (Philippines): Complaints presented by the International Confederation of Free Trade Unions, the Trade Unions of the Philippines and Allied Services and the Kilusang Mayo Uno against the Government of the Philippines 341-374 161-170 The Committee's conclusions 367-373 168-170 The Committee's recommendations 374 170 Case No. 1324 (Australia/Northern Territory): Complaints presented by the World Confederation of Organisations of the Teaching Profession, the Administrative and Clerical Officers' Association, AGE, the Australian Council of Trade Unions and the Australian Public Service Association (4th Division Officers) against the Government of Australia/Northern Territory 375-386 171-174 The Committee's conclusions 384-385 174 The Committee's recommendations 386 174 iv 8313n Paragraphs Pages Cases in which the Committee requests to be kept informed of developments 387-421 175-183 Case No. 1189 (Kenya): Complaints presented by the Public Services International and the Organisation of African Trade Union Unity against the Government of Kenya 387-395 175-177 The conclusions of the Committee 391-394 176-177 The Committee's recommendations 395 177 Cases Nos. 1277 and 1288 (Dominican Republic): Complaints presented by several regional and international trade union organisations, namely: the Inter-American Regional Organisation of Workers, the Latin American Confederation of Workers, the Permanent Congress of Trade Union Unity of Latin American Workers, the World Federation of Trade Unions, the International Confederation of Free Trade Unions, the World Confederation of Labour and by several Dominican Trade Union Organisations, namely: the General Workers' Federation, the National Confederation of Dominican Workers, the General Union of Dominican Workers, the Unified Workers Central and the Workers' Trade Union Autonomous Federation against the Government of the Dominican Republic 396-406 178-180 The Committee's conclusions 404-405 180 The Committee's recommendations 406 180 Case No. 1282 (Morocco): Complaint presented by the Local Federation of Trade Unions of Casablanca (Moroccan Federation of Labour) against the Government of Morocco 407-421 181-183 The Committee's conclusions 415-420 182-183 The Committee's recommendations 421 183 Cases in which the Committee has reached interim conclusions 422-856 184-323 Case No. 1054 (Morocco): Complaints by the Inter- national Confederation of Free Trade Unions, the World Confederation of Labour, the World Federation of Trade Unions, the Democratic Confederation of Labour and other trade union organisations against the Government of Morocco . 422-439 184-186 8313n v Paragraphs Pages The Committee's conclusions 431-438 185-186 The Committee's recommendations 439 186 Cases Nos. 1129, 1169, 1185 and 1298 (Nicaragua): Complaints presented by a number of international and national trade union organisations against the Government of Nicaragua 440-494 187-197 The Committee's conclusions 480-493 195-197 The Committee's recommendations 494 197 Cases Nos. 1176, 1195, 1215 and 1262 (Guatemala): Complaints presented by the Permanent Congress of Trade Union Unity of Latin American Workers, the Autonomous Trade Union Federation of Guatemala, the International Confederation of Free Trade Unions, the World Federation of Trade Unions and the National Committee of Trade Union Unity against the Government of Guatemala 495-521 199-205 The Committee's conclusions 514-520 204-205 The Committee's recommendations 521 205 Cases Nos. 1204, 1275, 1301, 1328 and 1341 (Paraguay): Complaints against the Government of Paraguay presented by the International Confederation of Free Trade Unions, the Latin American Central of Workers and the International Federation of Plantation, Agricultural and Allied Workers 522-550 210-217 General conclusions 532 212 Conclusions on Case No. 1204 533-536 212-213 Conclusions on Case No. 1275 537-538 213 Conclusions on Case No. 1301 539-542 214-215 Conclusions on Case No. 1328 543-547 215-216 Conclusions on Case No. 1341 548-549 216 The Committee's recommendations 550 217 Annex 218 Case No. 1219 (Liberia): Complaint presented by the National Agriculture and Allied Workers' Union against the Government of Liberia 551-563 236-240 The conclusions of the Committee 558-562 238-239 The Committee's recommendations 563 240 vi 8313n Paragraphs Pages Case No. 1250 (Belgium): Complaint presented by the National Federation of Independent Trade Unions against the Government of Belgium 564-648 241-264 The Committee's conclusions 619-647 257-264 The Committee's recommendations 648 264 Case No. 1266 (Burkina Faso): Complaint presented by the National Union of African Teachers of Upper Volta and the World Confederation of Organisations of the Teaching Profession against the Government of Burkina Faso 649-687 265-274 The Committee's conclusions 674-686 272-274 The Committee's recommendations 687 274 Case No. 1270 (Brazil): Complaint presented by the Jaoa Monlevade Metalworkers' Union, the Unitarian Workers' Federation and the World Confederation of Labour against the Government of Brazil 688-707 275-279 The Committee's conclusions 702-706 278-279 The Committee's recommendations 707 279 Case No. 1294 (Brazil): Complaint presented by the National Confederation of Agricultural Workers against the Government of Brazil 708-740 280-286 The Committee's conclusions 733-739 284-285 The Committee's recommendations 740 286 Case No. 1307 (Honduras): Complaint presented by the World Federation of Trade Unions against the Government of Honduras 741-749 286-288 The Committee's conclusions 747-748 288 The Committee's recommendations 749 288 Case No. 1309 (Chile): Complaints presented by the International Confederation of Free Trade Unions, the World Confederation of Labour, the World Federation of Trade Unions and other trade union organisations against the Government of Chile ... 750-805 289-302 The Committee's conclusions 795-804 299-302 The Committee's recommendations 805 302 8313n vii Paragraphs Pages Case No. 1326 (Bangladesh): Complaints presented by the World Federation of Teachers' Unions and the Sramik Karmachari Okkya Parishad against the Government of Bangladesh 806-821 308-312 The Committee's conclusions 814-820 309-312 The Committee's recommendations 821 312 Case No. 1330 (Guyana): Complaint presented by the National Association of Agricultural, Commercial and Industrial Employees and five other trade unions against the Government of Guyana 822-845 313-319 The conclusions of the Committee 839-844 318-319 The Committee's recommendations 845 319 Case No. 1333 (Jordan): Complaint presented by the World Federation of Trade Unions against the Government of Jordan 846-856 320-323 The Committee's conclusions 853-855 322 The Committee's recommendations 856 323 242nd REPORT Paragraphs Pages Introduction 1-4 324 Cases Nos. 997, 999 and 1029 (Turkey): Complaints presented by the World Confederation of Labour, the World Federation of Trade Unions, the International Confederation of Free Trade Unions and several other trade union organisations against the Government of Turkey Representation submitted by the General Confederation of Norwegian Trade Unions under article 24 of the Constitution, concerning non-observance of the Right of Association (Agriculture) Convention, 1921 (No. 11), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) by Turkey 5-38 324-333 The conclusions of the Committee 26-37 330-333 The Committee's recommendations 38 333 viii 8313n Earlier reports of the Committee on Freedom of Association have been published as follows: Report Publication Reports of the International Labour Organisation to the United Nations (Geneva, ILO) 1-3 Sixth Report (1952), Appendix V 4-6 Seventh Report (1953), Appendix V 7-12 Eighth Report (1954), Appendix II Official Bulletin Volume Year Number 13-14 XXXVII 1954 4 15-16 XXXVIII 1955 1 17-18 XXXIX 1956 1 19-24 XXXIX 1956 4 25-26 XL 1957 2 27-28 XLI 1958 3 29-45 XLIII 1960 3 46-57 XLIV 1961 3 58 XLV 1962 1 S 59-60 XLV 1962 2 SI 61-65 XLV 1962 3 SII 66 XLVI 1963 1 S 67-68 XLVI 1963 2 SI 69-71 XLVI 1963 3 SII 72 XLVII 1964 1 S 73-77 XLVII 1964 3 SII 78 XLVIII 1965 1 S 79-81 XLVIII 1965 2 S 82-84 XLVIII 1965 3 SII 85 XLIX 1966 1 S 86-88 XLIX 1966 2 S 89-92 XLIX 1966 3 SII 93 L 1967 1 S 94-95 L 1967 2 S The letter S, followed as appropriate by a roman numeral, indicates a supplement. For communications relating to the 23rd and 27th Reports see Official Bulletin , Vol. XLIII, 1960, No. 3. 8313n ix Report Publication Volume Year Number 96-100 L 1967 3 SII 101 LI 1968 1 S 102-103 LI 1968 2 S 104-106 LI 1968 4 S 107-108 LII 1969 1 S 109-110 LII 1969 2 S 111-112 LII 1969 4 S 113-116 LIII 1970 2 S 117-119 LIII 1970 4 S 120-122 LIV 1971 2 S 123-125 LIV 1971 4 S 126-133 LV 1972 S 134-138 LVI 1973 S 139-145 LVII 1974 S 146-148 LVIII 1975 Series B, Nos. 1-2 149-152 LVIII 1975 Series B, No. 3 153-155 LIX 1976 Series B, No. 1 156-157 LIX 1976 Series B, No. 2 158-159 LIX 1976 Series B, No. 3 160-163 LX 1977 Series B, No. 1 164-167 LX 1977 Series B, No. 2 168-171 LX 1977 Series B, No. 3 172-176 LXI 1978 Series B, No. 1 177-186 LXI 1978 Series B, No. 2 187-189 LXI 1978 Series B, No. 3 190-193 LXII 1979 Series B, No. 1 194-196 LXII 1979 Series B, No. 2 197-198 LXII 1979 Series B, No. 3 199-201 LXIII 1980 Series B, No. 1 202-203 LXIII 1980 Series B, No. 2 204-206 LXIII 1980 Series B, No. 3 207 LXIV 1981 Series B, No. 1 208-210 LXIV 1981 Series B, No. 2 211-213 LXIV 1981 Series B, No. 3 214-216 LXV 1982 Series B, No. 1 217 LXV 1982 Series B, No. 2 218-221 LXV 1982 Series B, No. 3 222-225 LXVI 1983 Series B, No. 1 226-229 LXVI 1983 Series B, No. 2 230-232 LXVI 1983 Series B, No. 3 233 LXVII 1984 Series B, No. 1 234-235 LXVII 1984 Series B, No. 2 236-237 LXVII 1984 Series B, No. 3 238 LXVIII 1985 Series B, No. 1 239-240 LXVIII 1985 Series B, No. 2 x 8313n 241st REPORT INTRODUCTION 1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 1, 2, 4 and 7 November 1985 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body. 2. The members of the Committee of Australian and New Zealand nationality were not present during the examination of the cases relating to Australia/NT (Case No. 1324) and New Zealand (Case No. 1334), respectively. * * * 3. The Committee is currently seized of 101 cases [this figure includes the cases relating to Turkey (Cases Nos. 997, 999 and 1029) which are examined in the 242nd Report] in which the complaints have been submitted to the governments concerned for observations. At its present meeting it examined 55 cases in substance, reaching The 241st and 242nd Reports were examined and approved by the Governing Body at its 231st Session (November 1985). These include the cases relating to Turkey (Cases Nos. 997, 999 and 1029) which are examined in the 242nd Report. definitive conclusions in 32 cases and interim conclusions in 23 cases; the remaining cases were adjourned for various reasons set out in the following paragraphs. * * * 4. New cases : The Committee adjourned until its next meeting the cases relating to the Dominican Republic (Case No. 1339), Morocco (Case No. 1340), Spain (Case No. 1342), Nicaragua (Case No. 1344), Australia (Case No. 1345), India (Case No. 1346), Ecuador (Case No. 1348), Malta (Case No. 1349), Canada/British Columbia (Case No. 1350), Nicaragua (Case No. 1351) and Israel (Case No. 1352), concerning which it is still awaiting information or observations from the governments concerned. All these cases concern complaints brought since the last meeting of the Committee. 5. Adjournments : The Committee awaits observations and information concerning the cases relating to Argentina (Case No. 1220), Peru (Case No. 1321), Canada/British Columbia (Case No. 1329), Brazil (Case No. 1331), Pakistan (Case No. 1332) and Nepal (Case No. 1337). The Committee again adjourned these cases and requests the governments concerned to transmit their observations. 6. As regards the cases relating to USA (Case No. 1130), Costa Rica (Case No. 1304), Spain (Case No. 1320), the Dominican Republic (Case No. 1322), Tunisia (Case No. 1327), Malta (Case No. 1335), Denmark (Case No. 1338), Colombia (Case No. 1343) and Bolivia (Case No. 1347), the Committee has received the governments' observations only recently or in circumstances which did not allow it to examine them in substance. It intends to examine these cases in substance at its next meeting. 7. As regards the case concerning New Zealand (Case No. 1334), involving a complaint submitted by the New Zealand Employers' Federation, the Committee took note of a communication containing comments on the case by the New Zealand Federation of Labour. The Committee considered that, in accordance with its usual procedure, it could only take account, in its examination of the case, of communications transmitted by the complainant organisation and of those submitted by, or through, the government concerned. It accordingly decided to inform the New Zealand Federation of Labour that its comments can only be taken into account if they are transmitted by, or through, the Government. Since the Government's reply to the complaint has already been received, the Committee decided to examine this case at its next meeting. URGENT APPEALS 8. The Committee observes that, in spite of the time which has elapsed since the last examination of the following cases and the seriousness of the allegations in some of them, the observations or information requested of the governments concerned have not been received: Cases Nos. 1190 and 1199 (Peru), 1296 (Antigua and Barbuda), 1300 (Costa Rica), 1308 (Grenada), 1311 (Guatemala), 1313 (Brazil) and 1325 (Sudan). The Committee draws the attention of the governments concerned to the fact that, in conformity with the procedural rules set out in paragraph 17 of the Committee's 127th Report, approved by the Governing Body, it may present a report at its next meeting on the substance of these cases even if the governments' observations have not been received in time for that meeting. The Committee accordingly requests the governments concerned to transmit their observations or information as a matter of urgency. * * * 9. 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: Cases Nos. 997, 999 and 1029 (Turkey); 1040 (Central African Republic); 1098, 1132, 1254, 1257, 1290, 1299 and 1316 (Uruguay); 1266 (Burkina Faso); 1291 (Colombia); 1293 (Dominican Republic); 1323 (Philippines); 1330 (Guyana). Direct contacts 10. As regards the cases relating to El Salvador (Cases Nos. 953, 973, 1150, 1168, 1233, 1258, 1269, 1273 and 1281), the Committee at its May 1985 meeting noted that, following an official visit by the Director-General to the country, the Government was willing to accept a direct contacts mission with a view to examining the various aspects of these cases. Not having received confirmation from the Government to enable this mission to take place, the Committee urges the Government to reply as rapidly as possible so that the Committee will have before it, at its February 1986 meeting, information obtained on the spot on these cases. 11. As regards the cases relating to Honduras (Cases Nos. 1216 and 1271), a Government representative during the 71st Session of the Interntional Labour Conference (June 1985) agreed that a direct contacts mission take place with a view to overcoming the divergences existing between Conventions Nos. 87 and 98 and Honduran legislation, as well as to obtain information on, and to discuss, the above cases. Since the Committee has not received confirmation from the Government to enable this mission to take place, it urges the Government of Honduras to reply as rapidly as possible so that the Committee will have before it, at its February 1986 meeting, information obtained on the spot concerning these cases. Effect given to the recommendations of the Committee and of the Governing Body 12. As regards Case No. 1074 (USA), examined by the Committee at its November 1981 meeting, information was requested from the Government on the results of the pending appeals lodged by dismissed air traffic controllers. In a communication dated 23 August 1985, the Government states that, as at 1 August 1985, the Full Merit Systems Protection Board (MSPB) has sustained the dismissal in 4,659 cases and ordered reinstatement in 94 cases; in 70 cases the appeal was withdrawn and the remaining 239 appeals before that instance are pending. At the US Court of Appeals level, despite a decision in favour of the employer in ten lead cases, 2,690 controllers renewed their appeals, 289 of which were subsequently withdrawn voluntarily by the appellants and 27 of which were dismissed by the Court. In 104 of these appeals, the Court has reaffirmed the dismissal. Thus, 2,270 of those cases are still pending. As this is the sixth communication from the Government concerning the status of the appeals, the Committee observes that it would now appear from all the information submitted that, of the 11,065 dismissed controllers who initially lodged appeals, a total of 444 reinstatements have been ordered. The Committee notes the information supplied by the Government and requests it to continue to inform it of the outcome of the pending appeals. 13. As regards Case No. 1100 (India), the Committee had requested the Government to keep it informed of the outcome of the case pending before the Supreme Court concerning the amendments introduced to the General Insurance Business (Nationalisation) Act which allegedly modify the conditions of service of the employees in the insurance sector without the consent of the unions concerned. In a communication of 9 July 1985, the Government states that the Supreme Court quashed the scheme of 1980 and left the option of amendment of the Act to the Government. The President of India promulgated, on 17 September 1984, an ordinance amending the General Insurance Business (Nationalisation) Act, 1972. This ordinance was challenged in the Supreme Court by the employees of the General Insurance Corporation. In the meantime, the General Insurance Business (Nationalisation) Amendment Bill was introduced and passed by both Houses of Parliament. This Act has also been challenged in the Supreme Court. The matter is, therefore, sub judice . The Committee takes note of this information and that the Government will communicate further developments regarding this case. 14. As regards the case concerning Chile (Case No. 1191), the Government states in a communication dated 14 August 1985 that the Second Chamber of the Supreme Court granted the appeal lodged in this case and overturned the decision to stay proceedings which had been handed down by the Military Court and the courts martial in complaints relating to allegations of torture and ill-treatment of trade union leaders. The Committee takes note of this information and requests the Government to keep it informed of developments in this matter. 15. As regards the case concerning Peru (Case No. 1228), the Committee had requested the Government to carry out an investigation into the alleged confiscation of mail addressed abroad by the Union of Peruvian Educational Workers and to inform it of the outcome of this inquiry. In a communication dated 15 July 1985, the Government states that, since 1980 when the democratic regime was instituted, all forms of control of mail have been eliminated; thus there is not, nor could there be, any supposed confiscation of mail in any circumstances. The Committee takes note of this reply. 16. As regards Case No. 1241 (Australia), examined by the Committee at its May 1984 meeting, information was requested from the Government on any measures taken to grant facilities to the Northern Territory Public Service Association, such as access to its members and distribution of trade union literature at the workplace. In a communication dated 20 August 1985, the Government states that, on 8 October 1984, the Northern Territory Public Service Commissioner circulated an instruction to all Departmental Heads and Prescribed Authorities indicating that the union in question be granted the same rights of access to its members and the use of notice boards as is accorded other registered unions. The Committee takes note of this information with interest. 17. As regards the case concerning Chile (Case No. 1297) which the Committee examined at its May 1985 meeting, it regretted that the Government had not supplied more detailed information on the persons who, according to the complainants, had been exiled for their trade union functions or activities and informed both the Government and the complainants that it would appreciate receiving any additional information available in this respect. In a communication dated 12 August 1985, the Government states that for humanitarian reasons it has authorised the return to the country of Héctor Cuevas Salvador. The Committee takes note of this information with interest and urges the Government to continue to keep it informed of any similar measure taken in favour of those persons still in exile. 18. Lastly, as regards Sri Lanka (Cases Nos. 988/1003), Morocco (Case No. 1077), Pakistan (Case No. 1175), India (Case No. 1227) and the United Kingdom (Case No. 1261), the Committee again requests the governments concerned to keep it informed of developments in these cases. The Committee hopes that these governments will communicate this information at an early date. * * * 19. In addition, the Committee notes with concern that, despite the time which has elapsed since the Governing Body requested certain governments to keep it informed of measures taken to give effect to its recommendations, these governments' replies have not been received. In this respect, the Committee would point out that, in accordance with the procedural rules set out in paragraphs 27 and 28 of its 127th Report, approved by the Governing Body, if there is no reply or if the reply given is partly or entirely unsatisfactory, the matter should be followed up periodically through invitations to the Director-General at suitable intervals, according to the nature of each case, to remind the government concerned of the matter and to request it to supply information as to the action taken on the recommendations approved by the Governing Body. The Committee itself will, from time to time, report on the situation. 20. In these circumstances, the Committee recalls those requests made some time ago and which remain without response. At its November 1984 meeting, the Committee invited the Government of Ecuador (Case No. 1230) to inform it of the outcome of the trial before the Second Criminal Court of Chimborazo concerning the circumstances surrounding the death, on 17 June 1983, of two Culluctuc trade unionists, Mr. Pedro Cuji and Mrs. Felipa Pucha, and the wounding of three peasants who were members of the Culluctuc Indigenous Community. At its November 1984 meeting, it also requested the Government of Barbados (Case No. 1264) to keep it informed of the outcome of the measures taken by the Chief Labour Officer towards recognition of the National Union of Public Workers for the purposes of collective bargaining. Lastly, at its May 1984 meeting, the Committee expressed its serious concern in the case of Honduras (Case No. 1268) at the lack of information on the circumstances surrounding the disappearance of the trade union leader, Rolando Vindel González, and requested the Government to keep it informed of the outcome of the court inquiries underway. Not having received the replies and information requested from the governments on these various points, the Committee invites the Director-General to bring these matters to the attention of the governments concerned and request them to send their replies urgently so as to enable the Committee, at its next meeting, to make a further assessment of the situation in each case. * * * 21. With regard to Cases Nos. 1135 (Ghana), 1146 (Iraq) and 1237 (Brazil), the Committee regrets that, despite repeated appeals, the respective governments have not replied to the Committee's requests to be kept informed of developments in the various cases. The Committee wishes to recall that: In Case No. 1135 (Ghana) , it had requested the Government to inform it of any measures which might be taken to terminate the freeze on the bank accounts of the trade unionists who were in exile. In this respect the Committee repeats its conclusion that, if, following investigation, no evidence is found to prove any misappropriation of trade union funds, it would be unreasonable to continue the freeze of the unionists' accounts whether they are in the country or not; In Case No. 1146 (Iraq) , the Committee requested the Government to send it the text of the judgement sentencing to death the leaders of the General Federation of Trade Unions in Iraq, Messrs. Mohamed Ayesh and Baden Fadel, who, according to the Government, had ceased to be union leaders well before being tried and sentenced to death for espionage and conspiracy against the security of the State. The Committee once again expresses its regret that the Government has not transmitted the text of the judgement handed down in this matter; In Case No. 1237 (Brazil) , the Committee requested the Government to communicate a copy of the judgements, together with the reasons adduced therefor, handed down against those responsible for the death of the trade union leader, Margarita Maria Alves, in August 1983. In this respect the Committee would once again recall that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected. 22. The Committee expresses the firm hope that in all these cases the governments concerned will take the necessary measures to give full effect to the recommendations of the Committee and the Governing Body. IRRECEIVABLE COMPLAINT 23. By a communication dated 28 June 1985 the Staff Union of the European Patent Organisation presented a complaint of alleged violation of trade union rights against that organisation. By virtue of the procedure in force, the Committee can only examine complaints presented against States. The Committee, accordingly, recommends the Governing Body to decide that the complaint in question is irreceivable. CASES NOT CALLING FOR FURTHER EXAMINATION Case No. 1305 COMPLAINT PRESENTED BY THE NATIONAL ASSOCIATION OF PUBLIC EMPLOYEES AGAINST THE GOVERNMENT OF COSTA RICA 24. The Committee examined this case at its May 1985 Session and submitted an interim report to the Governing Body [see 239th Report of the Committee, paras. 276-297, approved by the Governing Body at its 230th Session (May-June 1985)]. 25. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 26. In this case the complainant organisation had alleged that, as a result of an appeal lodged with the administrative authorities on 30 August 1984 by one of the candidates not elected to the new national executive committee of the National Association of Public Employees (ANEP), the Ministry of Labour and Social Security took measures which resulted in the suspension of the registration of the election results until a decision had been taken on the objection, the freezing of the ANEP's bank accounts and retention of the check-off funds amounting to administrative suspension of the ANEP. 27. The Government stated that its decision to investigate the validity of the elections was legally based on the Ministry of Labour's obligation to ensure that the unions operated in conformity with the provisions of the Labour Code concerning democratic voting procedures. The Government also stated that the decision to carry out an investigation arose out of a complaint by a candidate in the elections that there had been irregularities in the election procedures which justified their annulment. 28. The Committee formulated, in particular, the following recommendations [see 239th Report, para. 297]: The Committee draws the Government's attention to the principle that in cases where the results of trade union elections are challenged such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious. The Committee requests the Government to supply full and detailed information on the results of the inquiries that have been undertaken and to indicate whether any procedure exists for application to the courts concerning any administrative decision that may be taken in the matter. In order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases involving a challenge to the results of trade union elections should not - pending the final outcome of the proceedings - have the effect of paralysing the operations of trade unions. The Committee hopes that the measures taken by the Government will be lifted and that the workers' representatives who won the ANEP elections in August 1984 will be authorised to fulfil their duties in full freedom until a decision on the validity of the elections is reached and that, if necessary, an appeal may be made to the courts for a final decision in the matter. B. The Government's reply 29. The Government transmits, as an annex to its communication of 3 July 1985, the text of judgement No. 155 of the First Chamber of the Supreme Court of Justice, dated 19 December 1984, dealing with an application for amparo (enforcement of constitutional rights) lodged by the General Secretary of the ANEP. In this judgement, it is decided, in particular, that the following shall be without effect: the administrative procedure suspending the registration of the executive committee of the ANEP, the retention of cheques representing members' dues and the non-payment of cheques drawn on the various current bank accounts. 30. The preambular part of judgement No. 155 states in particular the following: The Ministry of Labour suspended the functioning of the National Association of Public Employees by refusing to register the new composition of the national executive committee and thus, to certify the legal capacity of the body and also by ordering administrative establishments and public corporations to retain the dues of the Association's members. It took those measures pending the outcome of an appeal lodged by one of the Association's members against the assembly that elected the members of the governing board. The case is therefore one of suspension of trade union activities by administrative order. This suspension violates freedom of association because it obstructs or prevents, albeit provisionally, the free functioning of the Association and restricts the right of association. The Ministry was empowered only to verify compliance with the legal requirements that the documentation must satisfy (a rule implied in section 344 of the Labour Code), for any questions that may arise between the members concerning anomalies in the assembly which do not appear in the record must be settled by the members before the labour courts. There is certainly no specific rule to that effect, but suspension of the registration of the governing board on grounds unconnected with the formalities of the documentation itself amounts to depriving the trade union of its legal existence pending an administrative ruling in a dispute which is of a judicial nature since the union cannot function without its executive organ (section 347, ibid). The foregoing criterion does not conflict with the provisions of section 337 already mentioned and section 47 of the Ministry of Labour Organisation Act because, although it is the Ministry's duty to watch over social organisations in order to ensure that they function strictly in accordance with the law, this does not imply freedom to take measures which prevent the normal activity of the body. Consequently, the measures referred to above are in breach of sections 10, 50, 11 and 153 of the Political Constitution. 31. The Government states that, after a delivery of judgement No. 155 dealing with the application for amparo lodged by the National Association of Public Employees, the Department of Social Organisations of the Ministry of Labour and Social Security proceeded to leave without effect the administrative procedure which had been started, to register the new governing board of the ANEP, to cancel the communications ordering retention of the check-off funds which had been sent out in virtue of the procedure started, to extend the approprate certification of the legal capacity of the ANEP and to inform those who had challenged the elections that their petition must be lodged through the judicial channel. 32. The Government adds that, on the basis of judgement No. 155, the Department of Social Organisations of the Ministry of Labour and Social Security has rejected every application made to it for the purpose of challenging the results of trade union elections, indicating that representations on such matters must be examined through the judicial channel. Similarly, the practice followed by the Department of Social Organisations since the delivery of the aforementioned judgement has been to register the appointment of new executive committees as it occurs, without awaiting the outcome of any judicial proceedings challenging such appointments. The result is that the functioning of a trade union organisation whose executive committee is challenged is at no time paralysed by administrative order. C. The Committee's conclusions 33. The Committee observes with interest that judgement No. 155 of the First Chamber of the Supreme Court of Justice, dated 19 December 1984, expresses principles consistent with those enunciated by the Committee at its last session, objecting to the measures of administrative suspension of the ANEP, the freezing of the ANEP's bank accounts and the retention of check-off funds, which had been taken on the basis of an administrative appeal lodged by a defeated candidate for election to the new executive committee of the ANEP. 34. The Committee observes in this connection that, as a result of judgement No. 155, the Department of Social Organisations of the Ministry of Labour and Social Security registered the new ANEP executive committee which had been elected, cancelled the communications sent out ordering retention of the check-off funds, and extended the appropriate certification of the legal capacity of the ANEP. Furthermore, in accordance with judgement No. 155 and with the principle advanced by the Committee at its last session, the Department of Social Organisations informed those who had challenged the elections through the administrative channel that any complaint on that subject must be made through the judicial channel. 35. In these circumstances, having regard to the measures adopted by the administrative authorities as described above, the Committee considers that this case does not call for further examination. The Committee's recommendation 36. In these circumstances, the Committee recommends the Governing Body to decide that this case does not call for further examination. Case No. 1336 COMPLAINT PRESENTED BY THE FEDERATION OF PROGRESSIVE UNIONS AGAINST THE GOVERNMENT OF MAURITIUS 37. The Federation of Progressive Unions (FPU) presented a complaint of violations of trade union rights in a communication of 7 May 1985 and further information in a letter of 24 May 1985. The Government replied in communications dated 10 June and 14 October 1985. 38. Mauritius has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainant's allegations 39. In its letter of 7 May 1985, the FPU complains of a government decision to prevent it celebrating May Day. It alleges that the Commissioner of Police decided to ban the union's public meeting and cultural gathering to be held in a village in the south of the country for no apparent reason. A copy of the Commissioner's notice of refusal addressed to a body called the "Organisation Southern Unity" is supplied; no reason for the refusal appears in the notice. From a newspaper clipping attached to the complaint, it appears that the FPU and the "Organisation Southern Unity" had intended to organise the festivities jointly. 40. In its letter of 24 May 1985, the FPU alleges that on 17 May 1985, following an incident in an export processing zone factory in which two female workers were assaulted by the factory manager, all the workers in that factory decided to stop work; some 20 other factories in the zone, whose employees are covered by the same union, decided to strike in solidarity. According to the FPU, upon the intervention of the police and the army, the President of the union concerned and three other workers were arrested. Two of the workers have since been released. The FPU states that the Government has supported the employers by agreeing to withdraw recognition of the union in all the factories affected by the strike and is studying the cancellation of the check-off system. The complainant points out that the assault of the two female workers was reported to the police but has not been followed up. B. The Government's reply 41. In its communication of 10 June 1985, the Government states that the strike in one export processing zone factory on 16 May and the solidarity strike of the following day were unlawful because the procedures prescribed by law had not been complied with. Moreover, the workers' representatives had seen the Minister of Labour the day before with various complaints about employment conditions and had been assured of immediate action. The strike was called off on 18 May. 42. The Government stresses that police presence at the factories during the strike was purely to ensure the preservation of law and order; workers assembled in one place became riotous, stoned factories and injured two police officers with stones. Three persons were arrested for throwing stones and others were arrested to aid in police inquiries into their contravention of the law of the land; the latter have been released on bail after completion of the inquiry. 43. The Government denies that the employers have asked for the cancellation of the registration of the unions concerned in the strike. It states that some 30 workers have been suspended from their employment pending disciplinary hearings at the end of May and some others have not been allowed to resume work, both actions being legal since the workers had breached their employment contracts by participating in an unlawful strike. The Government adds that it has pleaded for their reinstatement. A number of workers have also filed statements with the Labour Inspectorate alleging unjustified dismissal and these are being examined. 44. In its communication of 14 October 1985, the Government states that the FPU did not submit any application to the authorities concerned to hold public celebrations on May Day 1985. However, an unregistered body (Organisation Southern Unity) had applied for permission to stage a public show on 1 May. According to the Government, that organisation did not produce any documentary evidence proving that permission had been obtained from the appropriate authorities for the use of the premises where the show was to be performed. In addition, the Censorship Board found the show unsuitable for young persons. Consequently, the holding of the show was not authorised but the organisation was given leave to organise a procession in the south of the country. C. The Committee's conclusions 45. As regards the prohibition of May Day celebrations, the Committee notes from the Government's reply that the prohibition of May Day 1985 festivities did not affect the complainant union since the application to hold the event was lodged by a body (the Organisation Southern Unity) which apparently is not trade union in character. At no time does the complainant union mention any link with this body although it appears from a newspaper clipping attached to the complaint that the two organisations had intended to organise the festivities jointly. Given the mandate of the Committee, it considers that this aspect of the case - which does not affect trade union rights - does not call for further examination. 46. As regards the strike on 16-17 May 1985 in several export processing zone factories and the alleged retaliatory action of the Government (arrests, withdrawal of union recognition, etc.), the Committee notes the Government's statements that the strike was unlawful, that the arrests were based on the violent acts of the individuals concerned and that no cancellation of the union's registration has been sought. The Committee observes that s. 92 of the Industrial Relations Act, 1973 declares strikes unlawful unless a written report of the industrial dispute has been made to the Minister, a cooling-off period of 21 days has elapsed and the strike commences within 56 days of notice. It is therefore clear that the strike in the present case was unlawful under the legislation in force. The Committee considers that it should call the attention of the complainant to Article 8 of Convention No. 87 which provides that, in exercising the rights provided for in this Convention, workers and their organisations shall respect the law of the land. The Committee also considers that there is no evidence that the arrests were made for reasons other than preservation of law and order. 47. On the other hand, the Committee notes that the Government mentions the suspension of some 30 workers and the dismissal of others for participating in the unlawful strike. A number of these workers are challenging their dismissals with the Labour Inspectorate and the Government has interceded for their reinstatement. Since the normal processes in connection with the suspensions (disciplinary hearings) and dismissals (complaints before the Labour Inspectorate) are under way and the Government has interceded with the employers for reinstatements, the Committee considers that the principles of freedom of association have not been called into question and decides that this aspect of the case does not call for further examination. The Committee's recommendation 48. In these circumstances, the Committee recommends the Governing Body to decide that the case as whole does not call for further examination. CASES IN WHICH THE COMMITTEE HAS REACHED DEFINITIVE CONCLUSIONS Case No. 1040 COMPLAINTS SUBMITTED BY THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS AND THE GENERAL UNION OF CENTRAL AFRICAN WORKERS AGAINST THE GOVERNMENT OF THE CENTRAL AFRICAN REPUBLIC 49. The Committee has already examined this case on a number of occasions and most recently at its May 1984 meeting when, in the absence of any reply from the Government which had not sent any substantive information in response to the requests voiced by the Committee in its previous reports, it presented an interim report to the Governing Body [see 234th Report, paras. 445-484, approved by the Governing Body at its 226th Session (May-June 1984)]. 50. At its February 1985 meeting, the Committee noted that the Government had still not sent the desired information and observations, appealed to it to transmit its observations as a matter of urgency and indicated that, in conformity with its procedural rules, it would present a report on the substance of the case at its meeting in May 1985 [see 238th Report, para. 20, approved by the Governing Body at its 229th Session (February-March l985)]. 51. Since then, the ILO has received two communications from the Government dated 8 and 22 May 1985. 52. The Central African Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1949 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 53. The complaints related mainly to the dissolution by administrative authority of the General Union of Central African Workers (UGTC) but also concerned the occupation of the latter's premises, the freezing of its assets and the censorship imposed on it, as well as a number of dismissals. Trade union activities in the country were subsequently suspended and several trade unionists, including the Secretary-General of the UGTC, Sonny Cole, were arrested. 54. The complainants explained that the UGTC had called a general strike on 15 May 1981 throughout the private sector, following unsuccessful attempts at collective bargaining with the Government and with the employers. According to the complainants, the Government had rejected the list of grievances presented by the workers on the occasion of May Day, although the list contained demands relating for the most part to the working conditions of all employed persons. 55. On 16 May 1981, the day after the strike, the President of the Republic dissolved the organisation by decree on the grounds of its alleged uncompromising attitude in the negotiations with the employers and the Government, its alleged secret dealings abroad and its illegality arising from the trade union monopoly status provided for in its by-laws. The UGTC also alleged that, 48 hours prior to its dissolution, the authorities recognised a new central trade union organisation, the National Confederation of Central African Workers (CNTC). 56. Subsequently, the UGTC alleged the dismissal or suspension of a number of trade unionists and attached to its communication a Ministerial Order of 23 May 1981 suspending four senior officials from their duties. It also enclosed a note from the Ministry ordering the Director-General of the National Savings Bank of Central Africa to block the account of the UGTC. 57. Furthermore, as soon as it came to power on l September 1981, the Military Committee of National Reconstruction suspended all the activities of political parties and national organisations, including trade unions, throughout the country. 58. Following the blocking of the UGTC's assets, the organisation's Secretary-General, Sonny Cole, lodged a complaint against the Government with the Bangui Court. The hearing, which should have been held on 17 March 1982, did not take place because of the arrest of three of the court judges, including the President of the Administrative Court. 59. Lastly, the International Confederation of Free Trade Unions (ICFTU) alleged that Sonny Cole and other trade unionists had been arrested on 2 February 1983 for incitement to strike. 60. In its initial replies, the Government confirmed that the UGTC had been dissolved and explained that, in its opinion, the general strike of l5 May 1981 had had nothing to do with the conditions of work of employed persons but had been political in nature. It affirmed that it had dissolved the UGTC, which was exercising a trade union monopoly, in order to enable Central African workers to create freely the trade unions of their own choosing. 61. The Government stated that, since the UGTC had been dissolved, several central trade union organisations had been set up by the workers themselves: the National Confederation of Central African Workers (CNTC), the Central African Confederation of Free Trade Unions (CCSL) and the Central African Federation of Labour (FCT). The by-laws of these organisations were being examined by the Ministry of the Interior. The Government indicated, however, that trade union activities had been suspended and that it was therefore out of the question to recognise the CCSL or any new organisation that might be set up in the prevailing circumstances. It acknowledged that it had blocked the UGTC's bank accounts to safeguard the workers' assets and explained that the Bangui High Court was making an inventory of the assets of the former UGTC and would decide how they were to be allocated to organisations pursuing the same aims. According to the Government, the suspension of certain officials was a disciplinary measure taken against senior administrative officials found guilty of dereliction of duty, whose professional misconduct constituted lawful grounds for terminating their contracts of employment. 62. According to a statement by a Government representative to the Conference Committee on the Application of Conventions and Recommendations in 1982, the UGTC's bank deposits disappeared after the UGTC was dissolved, its officers with power of signature having rushed to the banks to draw cheques for their own benefit, as could still be proved. The Government representative stated that there was nothing to prevent the members of the former UGTC from establishing a new trade union organisation of their own choosing. 63. Addressing the Conference Committee on the Application of Conventions and Recommendations in 1983, the Government representative indicated that the Head of State had suspended all trade union and political activities in order to restore order and stop the trade union being utilised by political parties. However, although in practice political activities were suspended, trade union activities continued and the National Confederation of Central African Workers enjoyed freedom of expression. 64. With respect to the arrest of Sonny Cole, the Government stated that the acts of which he was accused were of a political nature. Sonny Cole and his fellow trade unionists were later released on l May 1983. 65. At its May-June 1984 session the Governing Body approved the following recommendations of the Committee: "(a) The Committee regrets the uncooperative attitude of the Government as regards this case as a whole. (b) In general the Committee wishes to express its deep concern at the seriousness of the measure to suspend trade union activities which has affected all aspects of trade union life since September 1981. It expresses the firm hope that trade union organisations in the Central African Republic will be able to resume their activities as rapidly as possible and that all workers will be able to establish organisations of their choosing, including an organisation carrying on from the ex-UGTC if they so wish. It requests the Government to inform it of any measure it may take with a view to re-establishing the activities of all trade union organisations that wish to exist in the country. (c) While noting the release of Sonny Cole and his colleagues on the occasion of the May Day celebrations in 1983, after three months' detention for incitement to strike, the Committee recalls that the arrest of trade unionists, and particularly of trade union leaders, for activities connected with the defence of the interests of workers, constitutes a serious infringement of civil liberties in general and of trade union rights in particular. (d) The Committee requests the Government to communicate the judgement of the Bangui Court concerning the dissolution of the UGTC and the transfer of its assets as soon as it has been handed down. (e) As regards the arrest of judges of the Bangui Court, including the President of the Administrative Tribunal, the Committee requests the Government to indicate whether these arrests were related to the case pending before the court which concerned the dissolution by administrative authority of the UGTC and the transfer of its assets. (f) The Committee notes that talks between its Chairman and the Government representative of the Central African Republic took place on 14 June 1983 at the 69th Session of the International Labour Conference concerning the possibility of an on-the-spot mission to examine all the questions at issue. The Committee urges the Government to transmit its reply concerning this mission, which it considers would be most useful and would enable it to reach conclusions on this case in full knowledge of the facts." B. The Government's reply 66. In a telegram of 8 May 1985, the Government informed the Committee that it was sending a memorandum on the case. A subsequent communication dated 9 May 1985 from the Ministry of the Public Service, Labour and Social Security, containing the Government's detailed explanations on the matter, reached the ILO on 22 May 1985. 67. According to the Government, the dissolution of the UGTC is lawful inasmuch as the organisation strayed from its essential objective of defending the occupational, social and economic interests of its members. The UGTC had originally been set up under the 1964 Constitution which had institutionalised a single-party system in the form of the Social Development Movement of Black Africa (MESAN), implicit in which was the existence of a single central trade union organisation, the UGTC, representing all occupational trade unions. 68. The Government explained that the dissolution of the UGTC, a single central trade union organisation that was an instrument of the MESAN, was the natural consequence, in law, of the institution of a multi-party political system under the Constitution of 5 February 1981. In other words, the Government's decision to dissolve the UGTC is in line with the new Constitution and therefore lawful. 69. The Government goes on to explain that the dissolution of the UGTC left all workers free to set up organisations of their own choosing and that three central trade union organisations had been established by the workers themselves: the National Confederation of Central African Workers (CNTC), affiliated to the World Confederation of Labour, on 10 August 1980; the Central African Federation of Labour (FCT), affiliated to the World Federation of Trade unions, on 12 July 1981; and the Central African Confederation of Free Trade Unions (CCSL), affiliated to the International Confederation of Free Trade Unions, also in 1981. The Government admits, however, that the by-laws of the two last-named organisations are still being examined by the Ministry of the Interior which is conducting the customary investigation into the moral standards of their officers in accordance with national legislation governing associations. 70. The Government further explains that, as a result of the establishment of these central organisations, there had been a serious split within the UGTC, that the organisation's leaders had been manipulated by the political parties and by foreign interests and had deviated from its objectives, that they had incited workers to revolt and that they had thus disrupted economic activities and law and order, paralysed the public institutions and endangered the very life of the nation. Furthermore, according to the Government, it was in this climate of insurrection, with the political parties pressing trade union demands for their own ends, that the Military Committee of National Reconstruction ordered the suspension of the activities of all national organisations, including central trade union organisations, throughout the country. 71. With respect to the restitution of the former UGTC's assets, the Government states that the Court has not yet handed down its judgement on the matter. It reiterates its earlier statement that the organisation's local bank deposits were withdrawn on 19 May 1981 by the former leaders of the UGTC who had used them for their own purposes. In the Government's view, it was only logical that they be asked to account for their actions. The Government adds that the alleged arrest of the Bangui Court judges was quite unrelated to the case pending before the court. 72. Finally, the Government continues, it was in the wake of a wildcat strike held by workers in the private sector to block a government decision to extend to private sector workers the exceptional contribution to national reconstruction that had hitherto been required only from workers in the employ of the State that a number of trade unionists, including former UGTC Secretary-General Sonny Cole and his colleagues, had been arrested in January 1983 following a police investigation for incitement to an illegal strike that was tantamount to a revolt against the legitimate authority of the State. On May Day of 1983, however, they had been released and reinstated in their duties, according to the Government. 73. With respect to the resumption of trade union activities, the Government states that the purpose of the "trade union truce" which it called in September l981 had been to bring about a climate of peace and security in which to revive the national economy after 15 years of plunder and ruin and to extricate the nation from the deplorable situation brought about by the irresponsible behaviour of the political parties, of the organisations that were their instruments and of certain politicised trade union leaders. The Government assures the Committee that it will in due course order the general resumption of trade union activities once a climate conducive to harmonious development has been restored and the sources of economic and social disruption have been eradicated; for the time being, however, no new development warrants its reconsidering its decision and thus risking a return to the situation that obtained prior to September 1981. 74. In conclusion, the Government believes that the complaints considered by the Committee in the present case should be dropped inasmuch as there is no new element to justify their further consideration in the present circumstances, since the suspension of the activities of national organisations is a general measure that is not specifically directed at trade unions, the right to organise continues to exist in the Central African Republic in accordance with its international commitments; a recognised trade union organisation, the National Confederation of Central African Workers, is collaborating with the public authorities and the employers in tripartite bodies operating at the national and international level; and the Government's decision which is the object of the complaint prohibits only demonstrations or activities of organisations liable to be politicised or to disturb the peace and disrupt the economy during the current period of national reconstruction. 75. Speaking before the Committee on the Application of Conventions and Recommendations of the International Labour Conference in 1985, the Government representative reiterated the explanations that his Government had given in its written communication of 9 May 1985. Regarding the possible date of resumption of trade union activities, he stated that he was not qualified to furnish any information on the subject but that, although the Military Committee had banned all national demonstrations, the Government had called on the workers to take part in the ceremonies that were to be held to commemorate the national holiday, which could be looked upon as a positive sign. C. The Committee's conclusions 76. In the first place, the Committee deplores the fact that it was only after it had sent the Government two urgent appeals in February 1984 and February 1985 that the latter sent a memorandum on the subject on 9 May l985. Moreover, the memorandum on the whole provides very little additional information. 77. The Committee regrets particularly that the Government should have chosen not to respond to its proposal and that of the Governing Body that direct contacts be initiated. Considering the importance and gravity of the matters raised in the complaints and the inadequate information supplied by the Government, the Committee is convinced that an on-the-spot mission by a representative of the Director-General would have helped to shed light on the trade union situation and contributed to a useful examination of appropriate solutions to the existing problems. 78. The Committee therefore feels obliged to recall that the purpose of the procedure that has been initiated is to secure the respect of trade union freedoms de jure and de facto and that it is convinced that, just as it protects governments against unreasonable accusations, the governments themselves must surely recognise the importance of their submitting detailed replies to the allegations made against them so that they can be examined objectively. 79. The Committee recalls that the complaints originally submitted in this case related to the dissolution of the UGTC which was ordered by decree No. 81/216 signed by the President of the Republic on 16 May 1981. Although the Committee notes the Government's repeated explanations regarding the trade union monopoly status exercised by the UGTC and the creation of a pluralistic trade union movement in accordance with the Constitution, the fact remains that a trade union organisation was dissolved by administrative authority in clear violation of Article 4 of Convention No. 87 ratified by the Central African Republic. 80. The dissolution of the UGTC naturally raises the question of the restitution of the funds and assets belonging to the organisation. The Committee observes that the Government itself recognises that the Court examining the case has not yet handed down its judgement. Under the circumstances, the Committee cannot but reiterate the principle that, when an organisation is dissolved, its assets should eventually be distributed among its former members or handed over to the organisation that succeeds it; this must be taken to mean the organisation or organisations which pursue the aims for which the dissolved union was established and which pursue them in the same spirit. [See, for example, 174th Report, Case No. 900 (Spain), para. 258, and 209th Report, Case No. 763 (Uruguay), para. 78]. 81. The application of this principle implies that the workers should have the right to set up organisations of their own choosing and, in particular, should be able, if they so desire, to establish an organisation that genuinely takes over from the UGTC. In this regard, the Committee notes the Government's repeated statements that the purpose of dissolving the UGTC was precisely in order to make possible trade union pluralism. It also notes the Government's further affirmation that several central trade union organisations were set up following the dissolution of the UGTC. The Committee must, however, observe that the Government itself recognises that only the CNTC has been legally registered and that the by-laws of the two other organisations set up in 1981 are still being examined by the Ministry of the Interior in 1985. Moreover, the delegation of the Central African Republic to the 71st Session of the International Labour Conference in 1985 apparently included no representative of these two central organisations. The Committee therefore calls upon the Government as a matter of great urgency to take steps to ensure that the workers are able both under the law and in practice to establish the organisations of their own choosing, in accordance with Article 2 of Convention No. 87. It calls upon the Government to indicate the current status of the property of the former UGTC, including both its fixed and its liquid assets, and the reasons why the Bangui Court which has been examining the matter of the restitution of the assets of this organisation since 1982 has not yet handed down its judgement. 82. With regard to the cancellation of trade union activities, which in the Central African Republic is known as the "trade union truce", the Committee notes that, according to the Government, trade union activities in the country are in practice normal and that the CNTC enjoys freedom of expression. The Committee observes, nevertheless, that the Government itself admits that the free exercise of trade union rights applies only to one central organisation. The Government has moreover recognised that the fact that trade union activities are suspended prevents it from recognising any new organisation that might be set up in the prevailing circumstances. The Committee must therefore emphasise that all workers in the Central African Republic should have the right to engage freely in the defence and promotion of their economic and social interests through central organisations of their choice. 83. The Committee considers that a return to normal trade union life must be the objective of the Government, which has ratified Conventions Nos. 87 and 98 and is consequently required to apply them. The Committee is therefore of the opinion that the question of the restitution of the assets of the former UGTC, that of the cancellation of trade union activities and that of the non-registration of the by-laws deposited in 1981 by the Central African Federation of Labour and the Central African Confederation of Free Trade Unions all warrant being brought to the attention of the Committee of Experts on the Application of Conventions and Recommendations. The Committee's recommendations 84. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) the Committee deplores that, despite the assurances given to the Chairman of the Committee on Freedom of Association and the Conference Committee on the Application of Conventions and Recommendations at a number of sessions of the International Labour Conference, the Government has not taken steps to restore freedom of association in the Central African Republic; (b) the Committee deeply deplores the fact that it should have had to send the Government two urgent appeals in February 1984 and February 1985 before the latter sent detailed information on this matter and regrets that it has not chosen to take up the proposal for a direct contacts mission to be sent to the country; (c) the Committee notes that the dissolution of the General Union of Central African Workers was pronounced by administrative authority, in violation of Article 4 of Convention No. 87 ratified by the Central African Republic; (d) the Committee recalls that the assets of an organisation which has been dissolved should be distributed among its former members or handed over to the organisation that succeeds it, by which is meant the organisation or organisations which pursue the same aims in the same spririt. It calls upon the Government to indicate the current status of the property of the former UGTC, including both its fixed and its liquid assets, and the reasons why the Bangui Court that has been examining the matter of the restitution of the assets of this organisation since 1982 has not yet handed down its judgement; (e) the Committee calls upon the Government as a matter of great urgency to take steps to ensure that the workers are able both under the law and in practice to establish organisations of their own choosing, in accordance with Article 2 of Convention No. 87, which has been ratified by the Central African Republic; (f) the Committee emphasises that all workers in the Central African Republic should have the right to engage freely in the defence and promotion of their economic and social interests through the central organisations of their own choice; (g) the Committee draws the entire case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, and specifically the question of the cancellation of trade union activities declared under the "trade union truce" and that of the failure to register the by-laws deposited since 1981 by two Central African central trade union organisations which the Ministry of the Interior has now been examining for four years. The Committee considers this to be in flagrant breach of the Conventions on freedom of association which have been ratified by the Central African Republic. Cases Nos. 1098, 1132, 1254, 1257, 1290, 1299 and 1316 COMPLAINTS PRESENTED BY SEVERAL TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF URUGUAY 85. On 26 August 1985, the Government sent information on Cases Nos. 1098, 1132, 1254, 1257, 1290, 1299 and 1316 concerning allegations of infringements of freedom of association presented by numerous workers' organisations. Its communication contained details of the steps taken since the Government assumed power on 1 March 1985 to halt the deterioration in the trade union situation in Uruguay and restore democracy. The Committee intends to examine all these cases, which relate to a trade union situation that arose under the regime that came to power as a result of the military takeover in 1973, in a single document. 86. Uruguay 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. General statement by the Government 87. In its letter of 26 August 1985, the Government states that the process of institutionalising democracy, and therefore of remedying the trade union situation, began on 1 March 1985. It recalls that it sent a representative to the May 1985 meeting of the Committee on Freedom of Association to explain what was happening and that a government representative informed the Governing Body of the ILO that a democratic Uruguay had now returned to the Organisation which was aware of its responsibilities and prepared to respect its commitments. The Government goes on to supply details of the various cases before the Committee. B. The complaints Cases Nos. 1098 and 1132 88. The complaints still pending concern the alleged arrest of trade unionists Luís Washington Rodríguez Belleti of the sugarworkers' union and Rubén Bello of the portworkers' union. At its May 1985 meeting, the Committee noted the information communicated by the Government in March 1985 to the effect that one of the trade unionists cited by the complainants was in hiding and that another had not been released after the declaration of an amnesty. The Committee requested the Government to indicate the grounds for the sentences passed on these two trade union leaders. [See 239th Report, para. 209, approved by the Governing Body at its 230th Session (May-June 1985).] 89. The Government has replied that the trade unionists referred to have been released, that no charge has been brought against them, that they have not been sentenced and that no legal proceedings have been initiated. Cases Nos. 1254, 1257, 1299 and 1316 90. The complaints presented under these cases refer to the dismissal of public servants and teachers for trade union reasons and the questioning at police headquarters of members of the Co-ordinating Committee for the Teaching Profession in connection with a public meeting in February 1984 (Case No. 1254), to the arrest of union members and the dissolution of the Inter-Union Workers' Assembly (PIT) (Case No. 1257), to the excessive restrictions on the right to strike imposed in 1984 by the law on strikes and the decree made under it (Case No. 1299) and to the Government's withdrawal of the credentials of the Workers' delegation of Uruguay to the First Session of the Food and Drink Industries Committee held at the ILO in Geneva on 5 December 1984 (Case No. 1316). 91. The Government recalls that these complaints arose out of the earlier situation to which it refers in its general statement, namely the refusal to constitute a tripartite delegation and the law on trade unions that was in force at the time. It points out that Act No. 15738 of 13 March 1985, of which it encloses a copy, repeals the so-called "Acts" Nos. 14248 (on the democratic oath), 15137 (on occupational associations), 15530 (on strikes) and 15587 (on trade union immunity) and the so-called "Fundamental Acts" Nos. 3 (on strikes by public servants), 5 and 6 (on stability of employment of state employees working under contract) and 7 (on the redeployment of public servants). The Government explains that, as a result of the repeal of this legislation, their juridical effects were annulled and that, consequently, international labour Conventions Nos. 87 and 98 are now fully applicable and may, if necessary, be cited in a court of law. Moreover, Decree No. 97/985 of 1 March 1985, of which the Government encloses a copy, revokes the resolutions adopted by the previous "de facto" Government, including the resolution dissolving the National Workers' Convention (CNT) and the Inter-Union Workers' Assembly (PIT), both of which were, according to the Government, immediately able to resume their trade union activities under perfectly normal conditions. Case No. 1290 92. This complaint concerns the alleged dismissal of trade unionists employed by the "Nicolás González" international freight transport undertaking. The Government had stated that one of the trade union leaders had been reinstated in his job following a conciliation meeting presided over by the administrative authority and, at its November 1984 meeting, the Committee had requested the Government to communicate the result of the administrative proceedings concerning the other union members. [See 236th Report, para. 390.] 93. The Government replies that the complainants have not re-presented their demands to the new administrative authorities and have not lodged any appeal with the competent courts. C. The Committee's conclusions 94. The Committee notes with satisfaction the information communicated by the Government on these cases and, specifically, the repeal of the earlier trade union legislation which was the subject of several complaints, the revoking of the resolutions dissolving the National Workers' Convention (CNT) and the Inter-Union Workers' Assembly (PIT) and the resumption by these two organisations of their trade union activities in Uruguay. 95. The Committee trusts that the Government of Uruguay will soon institute a system of labour relations which has the support of the interested parties; it will be for the Committee of Experts on the Application of Conventions and Recommendations to examine subsequent developments. The Committee's recommendations 96. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee notes with satisfaction that the earlier trade union legislation which was the subject of complaints by several workers' organisations has been repealed and that the National Workers' Convention and the Inter-union Workers' Assembly are now participating legally in the trade union life of the country. (b) The Committee trusts that the Government will soon institute a system of labour relations which has the support of the parties concerned; it will be for the Committee of Experts on the Application of Conventions and Recommendations to examine subsequent developments in the trade union situation. Cases Nos. 1172, 1234, 1247 and 1260 COMPLAINTS PRESENTED BY THE CANADIAN LABOUR CONGRESS, THE WORLD CONFEDERATION OF ORGANISATIONS OF THE TEACHING PROFESSION AND THE SERVICE EMPLOYEES INTERNATIONAL UNION AGAINST THE GOVERNMENT OF CANADA (ONTARIO), BY THE CANADIAN LABOUR CONGRESS ON BEHALF OF THE ALBERTA UNION OF PROVINCIAL EMPLOYEES AGAINST THE GOVERNMENT OF CANADA (ALBERTA), BY THE CONFEDERATION OF ALBERTA FACULTY ASSOCIATIONS AGAINST THE GOVERNMENT OF CANADA (ALBERTA) AND BY THE CANADIAN LABOUR CONGRESS ON BEHALF OF THE NEWFOUNDLAND ASSOCIATION OF PUBLIC EMPLOYEES AGAINST THE GOVERNMENT OF CANADA (NEWFOUNDLAND) 97. The complaint (Case No. 1172) of the Canadian Labour Congress (CLC), on behalf of its affiliated organisations the National Union of Provincial Government Employees (NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian Union of Public Employees (CUPE), is contained in a communication dated 15 November 1982. The CLC supplied additional information in communications dated 15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The World Confederation of Organisations of the Teaching Profession (WCOTP), presented its complaint, on behalf of its affiliates the Canadian Teachers Federation and the Ontario Teachers Federation, in a letter of 8 February 1983 and further information in a communication of 7 March 1983. The Service Employees International Union (SEIU) presented its complaint in a letter dated 6 April 1984. The Government sent its observations in communications dated 25 April 1983 and 7 June and 16 October 1984. 98. The Confederation of Alberta Faculty Associations (CAFA) presented a complaint (Case No. 1234) of violations of trade union rights against the Government of Canada/Alberta in a communication dated 19 September 1983. The Government supplied its observations in a communication dated 21 February 1984. 99. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1247) of infringements of trade union rights in Alberta in a communication dated 1 November 1983 on behalf of the Alberta Union of Provincial Employees (AUPE), a component of the National Union of Provincial Government Employees (NUPGE) which is the CLC's second largest affiliate. The Government transmitted its observations in a communication dated 3 May 1984. 100. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1260) of infringements of trade union rights in Newfoundland in a communication dated 3 February 1984 on behalf of the Newfoundland Association of Public Employees (NAPE), a component of the National Union of Provincial Government Employees (NUPGE) which is affiliated to the CLC. The Government transmitted its observations in a communication dated 29 May 1984. 101. The Governing Body Committee on Freedom of Association, at its meeting in November 1984 [236th Report, para. 7, approved by the Governing Body at its 228th Session, November 1984], decided to postpone its examination of the cases concerning Ontario, Alberta and Newfoundland since it was of the view that, before reaching conclusions in these cases, it would be necessary to obtain additional information, particularly through a study and information mission, which could assist in clarifying aspects of the laws and practices involved. The Committee accordingly requested the Government to indicate its consent to such a procedure. 102. In a letter dated 1 February 1985 the Government indicated that, after consultation with the various provincial governments concerned, it had no objection to such a mission taking place. 103. In its 238th Report, para. 10 [approved by the Governing Body at its 229th Session, February-March 1985], the Committee explained that the study and information mission would take place within the context of its examination of the cases. It emphasised that its proposal for such a mission stemmed from a desire on its part to reach conclusions in as full a knowledge and understanding as possible of the complex issues involved. It said that it was convinced that its work would be greatly facilitated by an on-the-spot appreciation of the day-to-day practical operation, in local conditions, of the legislation that was the subject of the complaints. 104. Arrangements were accordingly made for a study and information mission to take place in Canada - in particular, the Provinces of Ontario, Alberta and Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO appointed Sir John Wood, CBE, LLM, as his representative to carry out the mission; he was accompanied during the mission by Mr. William R. Simpson, Chief of the Freedom of Association Branch of the International Labour Standards Department and Mrs. Jane Hodges, an official of the Freedom of Association Branch. The report of the representative of the Director-General is annexed to this paper. 105. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) or the Labour Relations (Public Service) Convention, 1978 (No. 151). * * * 106. The Committee wishes first to express its deep appreciation to Sir John Wood for having undertaken this study and information mission as representative of the Director-General. It is thanks to his detailed report on all the cases examined that the Committee has been able to reach its conclusions in a fuller knowledge and with a greater understanding of the complex issues involved in these cases. In the view of the Committee, the report of the representative of the Director-General clearly demonstrates the usefulness of missions of this kind especially in difficult cases where, despite the voluminous documentation submitted by the parties, on-the-spot discussions can throw much additional light on the problems involved. 107. The Committee also wishes to express its thanks to the Government of Canada and to the Governments of the Provinces of Alberta, Ontario and Newfoundland for their co-operation with the mission. It also thanks the representatives of the Canadian Labour Congress, the National Union of Provincial Government Employees and those of the many other international, national or provincial unions who assisted the representative of the Director-General in carrying out his mandate. 108. Since the complaints and the replies of the various governments, as well as the information obtained during the mission, have all been fully analysed in the report of the representative of the Director-General, it only remains for the Committee to proceed to the formulation of its conclusions in the cases which it has now fully examined. A. The Committee's conclusions on Case No. 1172/Ontario 109. The Committee has taken note of all the information contained in the various complaints submitted in this case, the reply transmitted by the Government of the Province of Ontario and the detailed information obtained by the representative of the Director-General during the study and information mission. 110. The allegations in this case concern the enactment, in 1982, of the Inflation Restraint Act (or Bill 179) which came into effect on 21 September of that year. Since September 1983 Bill 179 is no longer in force, having been replaced by a further enactment, on 10 October 1983, known as the Public Sector Prices and Compensation Review Act (or Bill 111). No formal complaint has been submitted regarding this latter enactment. Since, however, as the representative of the Director-General has pointed out in his report, it is directly relevant to the issues raised in the complaint and is the latest act by the Government in the area of public sector collective bargaining, the Committee considers it appropriate to express its views on this legislation which, it notes, was also due to expire at the end of September 1985. The Committee further observes that the representative of the Director-General was able, during his mission, to obtain the views both of the unions and of the Government on the content and effects of Bill 111. 111. Bill 179 was enacted in the face of what the Government considerd as an emergency situation requiring action to counter rising inflation. It placed restrictions on collective bargaining for provincial public servants and employees of semi-public provincial institutions. The provisions of the Act have the effect of extending for a period of 12 months compensation plans that were in the process of negotiation or due to expire during the period from 1 October 1982 to 30 September 1983. 112. The complainants have alleged that, although they were consulted about future government action, their observations and opinions went unheeded. In their opinion the economic situation at that time did not warrant emergency legislative measures being taken to restrain public service incomes. 113. On this first point, the Committee notes from the report of the representative of the Director-General that there has been a lively debate as to the depth or even the existence of economic problems, but that, particularly in the present case, the Government was convinced that the economic situation in the province demanded urgent attention. Whatever the situation, there were, in the Government's view, obvious economic problems which it decided to tackle through the application of wage restraint legislation in the public sector. It is not for the Committee to question the economic arguments that formed the basis of that view or of the action that the Government took. 114. It is, however, for the Committee to express its views on the question whether, in taking such action, the Government went beyond what the Committee has considered to be acceptable limits that might be placed temporarily on free collective bargaining. 115. In the first place, the immediate effect of the legislation (Bill 179) was to limit public sector wage increases, for a period which did not exceed one year, to 5 per cent (in some cases 9 per cent). In this respect, the Committee recalls that it had acknowledged that stabilisation measures restricting the right to collective bargaining are acceptable on condition that they are of an exceptional nature, and only to the extent that they are necessary, without exceeding a reasonable period, and that they are accompanied by adequate safeguards to protect workers' living standards. The Committee considers, on the basis of all the information now at its disposal, that, in the present case, all these criteria were met or at least serious efforts were made by the Government to respect these criteria. 116. Another immediate effect of Bill 179 was to reduce increases negotiated in compensation plans prior to the date on which the legislation became applicable where such increases exceeded those provided for in the Act. While the Committee appreciates that the introduction of wage restraint measures must be timed in order to obtain the maximum impact on the economic situation, it nevertheless considers that the interruption of already negotiated contracts is not in conformity with the principles of free collective bargaining because such contracts should be respected. 117. As regards the complainants' original allegations that Bill 179 not only imposed financial restrictions but also interrupted all trade union activity, including the right to bargain on non-monetary items and the right to change bargaining agents, the Committee notes that, from a strictly legal point of view, these arguments were proved to be unfounded by the Ontario Court of Appeal in the Broadway Manor case. This decision, however, was handed down too late to be of any practical assistance to the parties during the control period and it is clear that, despite the Court's ruling, much difficulty and tension were caused as a result of the problems that arose on these matters. It is clear that bargaining on non-monetary items was obstructed during the course of the legislation so as not to undermine the intended financial control. It is also clear that it was the Government's intention to prevent any change in the bargaining agent during the restraint period in order, according to the representative of the Director-General, to secure as much industrial relations tranquility as possible during that period. The Committee is of the view that, where wage restraint measures are taken by a Government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity. 118. The Committee further notes that forceful arguments were submitted by the unions that the regular industrial relations machinery had been adversely affected by Bill 179 and subsequently by Bill 111. The fixed norm imposed by Bill 179 in effect constituted a substitute for arbitration. Under Bill 111 the unions argue, the freedom to bargain as well as the freedom of interest arbitrators is severely curtailed by the necessity to take account of the ability of the employer to pay as well as government fiscal policy. Questions were also raised concerning the independence of arbitrators. 119. Bill 111, the Committee observes, was introduced as a substitute for Bill 179 and removed many of the restrictions on wage bargaining that Bill 179 had been designed to cover. Bill 111, however, it seems clear, did constitute - although in a much less rigid manner - a continuation of the policy of restraint by the introduction of such concepts as "the employer's ability to pay" and "government fiscal policy" as criteria for consideration in arriving at wage settlements. There was much controversy, even amongst arbitrators, as to the extent to which these criteria actually influenced bargaining and arbitration awards or whether they were indeed at all times taken into account. 120. The Committee would emphasise, in this connection, that restrictions on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration proceedings. The Committee would also emphasise that the independence and impartiality of the arbitration system are paramount. If, however, as in the present case, arbitrators are directly appointed by a government which lays down in legislation certain criteria which arbitrators are bound to follow in the determination of awards it is inevitable that confidence in the system will diminish. 121. In the view of the Committee, the expiry of Bill 111 now renders possible a return to a normal situation in which collective bargaining can take place freely with recourse being available, when appropriate, to arbitration. The loss of confidence of the unions and other residual negative effects on industrial relations that have resulted from the recent wage restraint legislation could, at least to some extent, be offset by consideration being given by the Government, in consultation with the unions, to ensuring that the arbitration system, including the selection of arbitrators, enjoys the fullest possible confidence of all the parties. The Committee's recommendations 122. The Committee recommends the Governing Body to approve this part of the report and in particular the following conclusions: (a) The Committee is of the view that, in general, the Inflation Restraint Act (Bill 179) did not go beyond what the Committee has previously considered to be normally acceptable limits that might be placed temporarily on collective bargaining; (b) The Committee, however, considers that the interruption, by Bill 179, of contracts that had been already negotiated is not in conformity with the principles of free collective bargaining because such contracts should be respected; (c) The Committee would emphasise that, where wage restraint measures are taken by a government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity; (d) The Committee stresses that restrictions on the right to strike in public or essential services should be compensated by adequate, speedy and impartial conciliation and arbitration proceedings; (e) The Committee would express the hope that, since the legislation which was the subject of complaint has now expired, the Government, in consultation with the unions, will endeavour to overcome any residual negative effects of that legislation on industrial relations; more particularly, the Committee hopes that the arbitration system, and the procedures for the selection of arbitrators, will be revised in such a manner as to ensure that they enjoy the fullest confidence possible of all the parties. B. The Committee's conclusions on Case No. 1234/Alberta 123. The Committee notes that this case concerns allegations that amendments to the Universities Act deny freedom of association to faculty staff by empowering the employers (the Boards of Governors) to determine the membership of academic staff associations. The complainant cites the negative effect of the amendments on staff association membership at Athabasca University. 124. The Committee observes that this situation arises from the combined effect of two provisions of the Act, namely section 21.2(2) which defines "academic staff association" as a body consisting of "academic staff members", and section 17(1)(d.1) which empowers the Boards of Governors to designate "academic staff members". Although the Government's written reply stresses that the university environment requires a special approach to the employer-employee relationship because of the involvement of faculty staff in all levels of university management, it acknowledges that the employer at Athabasca University - after consultation with the faculty association - altered its restrictive designation of "academic staff members". 125. It appears from the report of the representative of the Director-General that only at Athabasca University did the employer's use of its designation power lead to problems. In the three other universities of the Province, designations of "academic staff members" were arrived at without difficulty in consultation with the faculty associations. Moreover, it appears that the peculiar circumstances at Athabasca University (namely, that it is an open university and was recently transferred from the provincial capital to a town in the north of Alberta) might have led to misunderstandings regarding the employer's restrictive designation of academic staff at that particular point in time. In any event, the Committee notes that designations have now been made in all four provincial universities to the satisfaction of both sides. 126. What remains is the fear that future designations could be made to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers. If designated as non-academic, these workers - who are specifically excluded from the Labour Relations Act and the Public Service Employee Relations Act - would have no possibility of forming or joining an association to further their interests. In these circumstances the Committee draws the Government's attention to the terms of Article 2 of Convention No. 87, ratified by Canada, which guarantee the right of all workers, without distinction whatsoever, to join or establish organisations of their own choosing. The particular circumstances of university decision-making in Alberta do not appear to the Committee to justify any restriction on this right through the vesting of wide designation powers in the employer body. The Committee recalls that it already came to this conclusion in its examination of past cases concerning the Provincial Government of Alberta to which the complainant refers in its written complaint. 127. The Committee accordingly considers that, in order to ensure full compliance with the principle of Article 2 of Convention No. 87, measures should be taken to repeal section 17(1)(d.1) and introduce an independent system of designation where agreement cannot be reached (for example, as suggested during the study and information mission, third party arbitration machinery). The Committee stresses this latter point because although the report of the representative of the Director-General indicates that consultations between the parties have led to satisfactory designations, the Provincial Government pointed out during the mission that it could not envisage any major change in policy regarding the Universities Act. The Committee is of the opinion that some independent machinery should be available, if necessary, to assist in the designation of "academic staff members" for the purpose of joining an academic staff association. Machinery such as that referred to in the report of the representative of the Director-General could alleviate the complainant's fear of abuse of section 17(1)(d.1). Recommendations of the Committee 128. In these circumstances, the Committee recommends the Governing Body to approve this part of the report and, in particular, to request the Government to take measures to repeal the provision in the Universities Act which empowers the employer body to determine the membership of academic staff associations. The Committee also recommends that consideration be given to the possibility of introducing an independent system for the designation, where necessary, of academic staff members, either through third party arbitration or some form of informal machinery as referred to in the report of the representative of the Director-General. C. The Committee's conclusions on Case No. 1247/Alberta 129. The Committee notes that this case concerns allegations that 1983 amendments (contained in Bill 44) to the Labour Relations Act and the Public Service Employee Relations Act of Alberta, on the one hand, restrict freedom of association by excluding numerous employees from bargaining units, and, on the other hand, interfere with the right of workers' organisations to organise their activities in full freedom by restricting the collective bargaining process and rendering the previously impartial arbitration system subject to government fiscal policy. 130. First, the Committee notes that, although not referred to in the written complaint, section 93 of the Public Service Employee Relations Act which bans the right to strike of provincial government employees was brought to the attention of the study and information mission. The Committee considers that an examination of this provision is important since it sets the background against which the formal allegations must be viewed. The AUPE claims that the Government's main justifications for this total ban on provincial public service strikes is that the employees concerned were so closely linked to those providing essential services as to make it reasonable to treat them in the same way and that there is no alternative supply for these services. AUPE made the point that section 93 does not apply to public servants employed by municipalities and school boards and it told the representative of the Director-General that there was no evidence of close links between essential and non-essential persons such that a strike by the latter would hinder the provision of essential services. Nor was there any evidence that there was no alternative source of supply for the services provided by the employees affected. 131. The Committee recalls that it has been called to examine the strike ban in a previous case submitted against the Government of Canada/Alberta [Case No. 893, most recently examined in the 204th Report, paras. 121 to 134, approved by the Governing Body at its 214th Session (November 1980).]. In that case the Committee recalled that the right to strike, recognised as deriving from Article 3 of the Convention, is an essential means by which workers may defend their occupational interests. It also recalled that, if limitations on strike action are to be applied by legislation, a distinction should be made between publicly-owned undertakings which are genuinely essential, i.e. those which supply services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and those which are not essential in the strict sense of the term. The Governing Body, on the Committee's recommendation, drew the attention of the Government to this principle and suggested to the Government that it consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition of strikes to services which are essential in the strict sense of the term. In the present case, the Committee would again draw attention to its previous conclusions on section 93 of the Act. 132. Linked to this question of restrictions on the right to strike is one of the specific written allegations, namely that an amendment contained in Bill 44 to section 117.1 of the Labour Relations Act prohibits the right to strike of all hospital employees. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. but that the Government told the representative of the Director-General that only small groups were affected by section 117.1 and that this question was, in any event, being challenged in the Alberta Court of Appeal and the Canadian Supreme Court. Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle set out in the above paragraph concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re-examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term. 133. As regards the exclusion from the collective bargaining process of disbursement control officers, hearing officers and employees performing substantially similar duties, as well as employees in the Legislative Assembly Office, Auditor General's, Electoral Office and Ombudsman's Office (section 21(1)(g) and (h) of the Public Service Employee Relations Act), the Committee notes from the Government's written reply that the previous situation has not been altered, but has been "further refined". It also notes from the information contained in the report of the representative of the Director-General that these amendments to section 21(1) were a legislative reversal of several decisions of the Public Service Employee Relations Board. Moreover, during the study and information mission, the AUPE expressed concern over a 1985 amendment to section 21(1)(l) which allows exclusion "for any other reason". Although disputes over subsection (1) exclusions may be referred to the Board for decision under section 21(2), the AUPE remained suspicious of the wide ambit of possible exclusions; they stated that, in practice, over 400 employees had been denied access to the collective bargaining process by these amendments to section 21. The Government, on the other hand, told the mission that only 260 employees had been affected, all being mainly involved in the managerial/personnel policy area. 134. In the light of the voluminous information provided to the mission as to the non-managerial nature of some of these employees' tasks, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State (i.e. employed in various capacities in government ministries or comparable bodies) and not other persons employed by the Government, by public undertakings or by independent public corporations, can be excluded from the guarantees of collective bargaining. Under this criterion, the Committee cannot accept that all the public employees now listed in section 21(1) should be excluded from representation in the collective bargaining process. It accordingly requests the Government to reconsider this section in the light of this principle. 135. Although not referred to in the written complaint, much information was given to the mission on section 48(2) of the Public Service Employee Relations Act which limits the subject-matters which may be referred to arbitration. According to the AUPE, although the Board may determine disputes as to whether certain items are non-arbitral, the unions have lost all confidence in the Board because of its recent decisions in this area which, the union claims, regard all matters as part of the managerial prerogative of the employer and thus not appropriate for arbitration. Moreover, the AUPE claimed that the Board often delayed or prevented reference of whole bargaining disputes to arbitration. The Committee takes note of the information on this question reflected in the report of the representative of the Director-General since it forms part of the background to the second main allegation in the present case, namely that Bill 44 has damaged, if not destroyed, the arbitration system. More specifically, it is claimed by the union that the arbitration system has been weakened by the use of a procedural body (the Public Service Employee Relations Board) to screen issues before they reach arbitration. The Committee also notes the examples that were given to the misson of matters that had been considered by the Board as not being appropriate for submission to arbitration (e.g. hours of work, certain leave periods, transfer, promotion, etc.). The Committee has emphasised that restrictions on the right to strike in the public service or in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration in which the parties can take part at every stage and on which the awards, once made, are binding on both parties. The Committee is of the view that the existing system, under which the Public Service Employee Relations Board can prevent the referral to arbitration of matters which have formed the basis of a dispute, is not fully in accordance with ILO principles and is one which has led to considerable tension between the parties and to a loss of confidence by the unions in the arbitration machinery. 136. As regards the alleged interference in the arbitration process itself by the listing of factors - including government fiscal policies - to be taken into account by arbitrators in reaching awards (section 117.8 of the Labour Relations Act and section 55 of the Public Service Employee Relations Act), the Committee notes the Government's written reply that various factors are merely listed in the legislation without indications as to the importance which the arbitration boards should give them. The Committee observes from the report of the representative of the Director-General that, in practice, arbitration boards were not giving overriding predominance to government fiscal policy and in some cases did not find it useful at all. Nevertheless, the complainant still fears potential abuse. It is this lack of confidence that obliges the Committee to recall again the principle that adequate, impartial and speedy conciliation and arbitration procedures should be available in the event of the right to strike being subject to limitations in the public or essential services. 137. In the present case, it appears to the Committee that the independence of the arbitration boards set up to compensate public employees for the loss of their right to strike (being composed of a representative of each of the parties to the dispute plus a chairman jointly appointed by the representatives) is not called into question by the listing in legislation of factors to be taken into account. 138. As regards the eight other amendments to the Labour Relations Act (one of which was copied in the Public Service Employee Relations Act) contained in Bill 44, the Committee notes from the report of the representative of the Director-General that many of these have not given rise to problems in practice and that some have not even been utilised. In particular, the Committee sees no threat to freedom of association with the following sections: - Section 1(w.1), introducing a new concept of "trade union organisation", was never adopted; - Section 74(1), requiring a duly authorised representative for collective bargaining to be resident in Alberta, may cause minor inconvenience to the union but is in fact clearly intended to avoid delays in the final settlement and signing of agreements. It does not fetter a trade union's right to seek assistance in bargaining from persons outside the province; - Section 87, allowing only one Board-supervised strike or lock-out vote, restricts certain union tactics but does not prevent the polling of members to determine the position prior to calling for a vote; - Section 49(1), requiring a 90-day moratorium before applying for a further certification order, again affects union tactics but was clearly intended to remove uncertainty as to a union's real strength in the bargaining unit and to avoid abuses of certification proceedings; - Section 132, allowing application to the Board to determine successor rights, only regulates and expedites normal past practice and is not unreasonable; - Section 102.2, empowering the recommendations of a Disputes Inquiry Board to be put to the employees concerned, may raise the question of the role of a union executive but does not deprive individual workers of their trade union rights. 139. On the other hand, the Committee would express some concern over two other individual amendments to the Labour Relations Act: - Sections 105 and 106, prohibiting the threat of an illegal strike, could impede the freedom of workers' organisations to organise their activities in full freedom and place trade union officials in some jeopardy, given the broad definition of "strike" in the Act. The Government told the representative of the Director-General that section 105 had not been used and that it would be up to the Board to highlight any difficulties with its drafting if and when called to apply this provision. The Committee considers that the uncertainty and imprecision of the definition of a "strike" could, as the representative of the Director-General suggested, lead to difficulties for trade unionists who take bona fide action that is subsequently found to be illegal. The Committee would request the Government to take steps to clarify the situation in consultation with the unions and, if necessary, amend the provision accordingly. - Section 117.94 (and section 92.2 of the Public Service Employee Relations Act), allowing the employer to suspend check-offs if an illegal strike takes place, have not been used. The precise scope of the provision is, however, uncertain in the sense that it is not clear whether the suspension would apply to a whole bargaining unit or only to the illegal strikers. Discussion should take place with the unions to clarify the manner in which the provision would be applied in practice. The Committee's recommendations 140. In these circumstances, the Committe recommends the Governing Body to approve this part of the report and, in particular, the following conclusions: (a) The Committee considers that the provisions of the Public Service Employee Relations Act and the Labour Relations Act prohibiting the right to strike of a broad range of provincial public servants and hospital workers go beyond acceptable limits on the right to strike recognised as deriving from Article 3 of Convention No. 87. The Committee requests the Government to re-examine the provisions in question in order to confine the ban on strikes to services which are essential in the strict sense of the term. (b) As regards the broad range of public servants excluded from the collective bargaining process by section 21(1) of the Public Service Employee Relations Act, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State may be so excluded. It requests the Government to reconsider this section in the light of this principle. (c) Although the Committee does not consider that the listing of government fiscal policies as a factor to be considered by arbitrators calls into question the principles of freedom of association, it notes with some concern the power given to the Public Service Employee Relations Board (by section 48(2) of the relevant Act) to determine all matters in a collective dispute that may be referred to arbitration. The Committee hopes that provisions such as these which have undermined the union's confidence in the arbitration system - which is meant to compensate the employees concerned for the lack of the right to strike - will be reconsidered in consultation with the parties and appropriate amendments made with a view to enabling arbitrators to examine all matters in dispute. (d) The Committee sees no threat to freedom of association with the various amendments to the Labour Relations Act contained in Bill 44 and outlined in paragraph 138 above, i.e. section 74(1), section 87, section 49(1), section 132 and section 102.2. (e) As regards sections 105 and 106 of the Labour Relations Act, as amended, prohibiting the threat of an illegal strike, the Committee requests the Government to take steps to clarify the precise scope of this provision in consultation with the union and, if necessary, amend the provision accordingly; (f) As regards section 117.94 of the Labour Relations Act and section 92(2) of the Public Service Employee Relations Act, concerning the suspension of check-off in the event of an illegal strike, the Committee recommends that discussion takes place with the unions in order to clarify the manner in which this provision would be applied in practice. D. The Committee's conclusions on Case No. 1260/Newfoundland 141. The Committee notes all the detailed information supplied by the complainants in this case, the equally detailed information transmitted by the Government and the information contained in the report of the representative of the Director-General. 142. In essence, the complainants had alleged that the Public Service (Collective Bargaining) Act - known as Bill 59 - which came into effect on 1 September 1983, was in contradiction with international standards on freedom of association in three particular areas: the definition of "employee" contained in section 2(1)(i) of the Act; the designation of "essential employees" (section 10) and the limitation on strike action (sections 10, 23 and 24). 143. Before examining these individual aspects, the Committee would first note the information now at its disposal concerning the introduction of the legislation in question. It can only express regret that, in spite of what appears to have been a good relationship between the complainant union and the Government, the process of consultation with the union prior to the introduction of Bill 59 was inadequate. The attitudes of both parties were to an extent the reason for this inadequacy. The Government, for its part, had what it considered to be solid reasons, based on experience, for amending existing legislation, whereas the union was opposed to such a course of action. The result was an enactment which, in the opinion of the union, casts suspicion on the Government's real motives in proclaiming it. It was also an enactment which, had proper consultations taken place, may well have taken a different form and thereby avoided the tension and suspicion that obviously exists between the union and the Government. The Committee, in particular, notes that only two years after the enactment of Bill 59, important amendments were made in 1985. 144. The Committee would emphasise the importance which should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. It would express the firm hope that the Government and the union will, in the light of the problems which have emerged from the procedure used to introduce Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that have arisen in the present case. 145. As regards section 2(1)(i)(xii) of Bill 59 (definition of "employee"), the union's principal concern was the exclusion from the definition of persons employed in an employment opportunity programme administered and financed by the Provincial Government, and/or financed by the federal Government. According to the union, not only did the provisions prevent such persons from joining a union, but the presence of this non-unionised labour in workplaces where the union had members, constituted an obstacle to collective bargaining and a threat to union effectiveness in the event, for example, of a strike. 146. On this question, the Committee notes that there seemed to be a considerable amount of misunderstanding between the parties as to the precise number of persons covered by this subsection. Whatever the case, the Committee cannot accept that persons engaged in an employment opportunity programme should be excluded from the right to belong to a trade union of their choice. The Committee considers that the extension of the right to organise of these persons would not necessarily interfere with the proper functioning of the programme and that, in addition, it would diminish the fear of the union that unionised workers might be replaced by workers engaged under the programme. 147. A further exclusion from the definition of "employee" is the category of workers who advises the employer in relation to the development or administration of policies or programmes (section 2(1)(i)(xv). The Committee notes that the Labour Relations Board, tripartite in character, appears in the past to have exercised its powers fairly restrictively in deciding exclusions from the bargaining unit. It considers that this subsection is not contrary to the principles of freedom of association. 148. In view of the problems and the climate of suspicion to which the above provisions in Bill 59 have given rise, the Committee would urge the Government to reconsider the question of exclusions in full consultation with the union. 149. The Committee notes that the right to strike is available to public service employees in Newfoundland subject to a number of limitations concerning, in particular, employees deemed to be essential. Essential employees are defined in the principal Act as "employees whose duties consist in whole or in part of duties, the performance of which at any particular time or during any specified period of time is, or may be, necessary for the health, safety or security of the public" (section 10.1). 150. In this connection, the Committee would, in the first place, recall that it has accepted that the right to strike may be limited or prohibited as regards public servants acting in their capacity as agents of the public authority or engaged in services whose interruption would endanger the life, personal safety or health of the whole or part of the propulation. Such limitations or prohibitions should, however be offset by adequate, impartial and speedy conciliation and arbitration procedures. In addition, the Committee observes that the 1985 amendments to the legislation exclude a substantial number of bargaining units from the application of section 10 of the Act. The Government had also agreed with the union in writing that no essential services would be sought in some ten bargaining units. 151. The problem in Newfoundland is that, although strikes can take place even in services such as health-care institutions, the strike may be rendered ineffectual as a result of the procedure for the designation of a certain number of "essential workers". In addition, recourse to arbitration may be impeded if the number so designated by the Labour Relations Board falls below 50 per cent of the employees involved. In other words, it would seem in such circumstances that the limitations placed on unions to carry out an effective strike are not adequately compensated by unimpeded access to arbitration machinery. 152. The Committee considers that, while the method of designating essential employees is not inconsistent with the principles of freedom of association, the Government should nevertheless review the relevant provision in such a manner as to facilitate access to independent arbitration in the event of a dispute. 153. Further amendments introduced to the principal Act by Bill 59 affecting the right to strike were also criticised by the union. Section 2 of Bill 59 repealed and substituted section 10 of the principal Act in such a manner as to prevent a bargaining agent from taking a strike vote or going on strike until agreement has been reached on or the Board has determined the number of essential employees in the unit concerned. Moreover, amendments to section 23 and 24 of the Act made it necessary not only to give seven days' notice of a strike but also to indicate the date on which the strike would start. If the strike did not start on the date specified in the notice, no strike could take place for one month, and then only if a further seven days' notice was given with a further proposed date on which the strike would commence. These amendments also prevented strikes on a rotating basis in health service institutions. 154. As regards these amendments and the allegations that were made, the Committee does not consider the modalities that they impose to be an undue hindrance on unions in the exercise of their right to strike and thereby going beyond what is acceptable under international standards and principles on freedom of association. The Committee also notes, in particular, that the further amendments introduced in July 1985, the one-month period referred to above, now only applies to the hospital sector. The Committee, however, notes from the report of the representative of the Director-General that these limitations are seen by the unions as an interference by the Government in the determination of strike tactics and, in particular, that the notice requirement could be used to delay strikes by last-minute bargaining. The Committee observes that there is no evidence that these fears are justified, particularly in view of the Government's statement that the parties could always agree to extend the seven-day notice period by one day if necessary. This is yet another matter which the Committee considers could be jointly discussed between the parties with a view to removing the doubts and suspicions that remain as to the manner in which the legislation will be applied. The Committee's recommendations 155. The Committee recommends the Governing Body to approve this part of the report and, in particular, the following conclusions: (a) The Committee emphasises the importance which should be attached to full and frank consultations taking place with the trade unions on any questions or proposed legislation affecting trade union rights; it expresses regret that consultation with the complainant union prior to the enactment of Bill 59 was inadequate. (b) The Committee considers that persons engaged in employment opportunity programmes should not be excluded from the right to belong to a union of their choice; it urges the Government to reconsider the question of the exclusion of this category in full consultation with the union. (c) The Committe emphasises that limitations on strike action in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties. (d) The Committee requests the Government to review the provisions of the legislation concerning the designation of essential employees in order to facilitate access to independent arbitration in the event of a dispute. (e) The Committee does not consider the modalities for strike action imposed by sections 23 and 24 of Bill 59, as amended, to be inconsistent with the principles of freedom of association. (f) The Committee expresses the firm hope that the Government and the union will, in the light of the problems which have emerged from the enactment of Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that remain concerning the practical application of this legislation. ANNEX REPORT ON A STUDY AND INFORMATION MISSION TO CANADA BY SIR JOHN WOOD, CBE, LLM, REPRESENTATIVE OF THE DIRECTOR-GENERAL OF THE INTERNATIONAL LABOUR OFFICE, CONCERNING THE FOLLOWING CASES BEFORE THE GOVERNING BODY COMMITTEE ON FREEDOM OF ASSOCIATION: ONTARIO (CASE NO. 1172), ALBERTA (CASES NOS. 1234 AND 1247) AND NEWFOUNDLAND (CASE NO. 1260) Table of contents Paragraphs I. Introduction 1-7 Paragraphs II. General remarks 8-21 (a) Economic and political pressures 9-10 (b) Public sector 11-13 (c) Collective bargaining machinery 14-15 (d) Legislation 16-21 III. Case of Alberta - No. 1247 22-84 A. Introduction 22 B. The issues 23 (i) Exclusion of certain employees from collective bargaining 24-25 (ii) The arbitration system 26-28 (iii) Other issues 29-45 C. Information obtained during the mission 46-75 (a) Collective bargaining and arbitration 48-56 (b) Excluded employees 57-58 (c) The right to strike 59-67 (d) Other issues 68-75 D. Concluding remarks 76 Collective bargaining and arbitration 77-78 Individual items 79-80 General considerations 81-84 IV. Case of Alberta - No. 1234 85-96 A. Introduction 85 B. The issues 86-92 C. Information obtained during the mission 93-94 D. Concluding remarks 95-96 V. Case of Ontario - No. 1172 97-157 A. Introduction 97 B. The issues 98-119 C. Information obtained during the mission 120-143 D. Concluding remarks 144-157 Paragraphs VI. Case of Newfoundland - No. 1260 158-218 A. Introduction 158 B. The issues 159-160 (i) Definition of "employee" 161-165 (ii) Designation of "essential" employees ... 166-173 (iii) Limitations on strike action 174-177 C. Information obtained during the mission 178-179 (a) Consultations 180-181 (b) Definition of employee 182-185 (c) Questions concerning the right to strike . 186-208 D. Concluding remarks 209-218 VII. Final remarks 219-232 1. Inflation control 222-223 2. Consultation 224-225 3. Public servants - bargaining and the right to strike 226 (a) Collective bargaining 227-228 (b) Independent dispute resolution 229-232 Page ANNEX 113 I. Introduction 1. The Governing Body Committee on Freedom of Association, at its meeting in November 1984, decided to postpone its examination of the cases concerning Ontario, Alberta and Newfoundland since it was of the view that, before reaching conclusions in these cases, it would be necessary to obtain additional information, particularly through a study and information mission, which could assist in clarifying aspects of the laws and practices involved. The Committee accordingly requested the Government to indicate its consent to such a procedure. 2. In a letter dated 1 February 1985 the Government indicated that, after consultation with the various provincial governments concerned, it had no objection to such a mission taking place. 3. The Committee explained that the study and information mission would take place within the context of its examination of the cases. It emphasised that its proposal for such a mission stemmed from a desire on its part to reach conclusions in as full a knowledge and understanding as possible of the complex issues involved. It said that it was convinced that its work would be greatly facilitated by an on-the-spot appreciation of the day-to-day practical operation, in local conditions, of the legislation that was the subject of the complaints. 4. Arrangements were accordingly made for a study and information mission to take place in Canada - in particular, the provinces of Ontario, Alberta and Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO appointed me as his representative to carry out the mission, and I was accompanied, during the mission, by Mr. William R. Simpson, Chief of the Freedom of Association Branch of the International Labour Standards Department, and Mrs. Jane Hodges, an official of the Freedom of Association Branch. 5. Through the efficient services of the officials of the Canadian Ministry of Labour responsible for these matters, and the equally efficient services of the officials of the Canadian Labour Congress, arrangements were made to establish a programme of meetings with representatives of the federal Government and those of the provincial governments involved and with the various national and provincial unions who had been involved in the submission of the complaints (for a detailed list of the persons involved, see Annex). It is also thanks to the facilities that were extended to me by the governments and unions of the provinces of Ontario, Alberta and Newfoundland that I was able to carry out successfully the mandate that had been entrusted to me. 6. Prior to my departure to Canada I had had the opportunity to examine the complaints that had been presented in these cases, the various replies of the respective governments and the very voluminous documentation and legislative texts which had accompanied the many communications addressed to the ILO. In preparing this report I found it appropriate in the first place, to describe in some detail the main issues raised by the complainants in their written allegations as well as the respective goverments' arguments in rebuttal of those allegations. The information which I was able to collect during the mission concerning these matters is then described. I have attempted thus to provide the Committee on Freedom of Association with a report that gives as complete a picture as possible of the situation from the time the complaints were presented until the present time. I am hopeful that, in presenting my report in this manner, I have been successful in facilitating the work of the Committee in reaching its conclusions in these cases. 7. I would emphasise that it was at no time my intention or desire - nor indeed was it part of my mandate - to formulate any conclusions on the various issues that I was called upon to examine. That responsibility rests exclusively with the Committee on Freedom of Association itself. I did, however, carry out this mission having in mind the international standards and principles concerning freedom of association, the application of which had been brought into question by the complainant organisations and I have not hesitated in this report to set forth certain personal opinions or impressions that I was able to form regarding possible breaches of international obligations or regarding any remedial steps that might be taken if ILO standards and principles did not seem to be fully applied. In so doing, my intention was not to prejudge the conclusions of the Committee, which will no doubt attach to these opinions or impressions the weight which it considers appropriate and correct. II. General remarks 8. It is not necessary for me to emphasise that the individual complaints arise in three provinces of a federal State. The structure and complexities of such a constitutional arrangement will be well known to the Committee. Although each issue has to be assessed in the confines of the individual provincial context it is instructive to note that the problems have some common aspects. This is well known to the parties. Indeed, on the trade union side the influence of trade union centres inevitably leads to attention being given to the general similarities of the issues. It may be worth while to draw attention to a few of these general points. The purpose is not to divert attention from the duty to treat each case indpendently but to illustrate more clearly the underlying problems. (a) Economic and political pressures 9. The legislation which lies at the heart of most of the complaints represents an attempt by the government concerned to tackle perceived economic problems. These problems have provoked a political response which in turn lends shape to the objects and scope of the consequent legislation. This is very clearly the case with Bill 44 in Alberta and Bill 179 in Ontario. Bill 59 in Newfoundland is less obviously concerned with economic problems but the steps taken appear to flow, however indirectly, from such considerations. 10. There is, of course, a lively debate as to the depth, even as to the existence, of economic problems. Whatever view is taken on this it is plain that the governments concerned were clear that the economic problems demanded urgent attention usually described as an attack on inflation. It is the impact of these legislative steps on the implementation of ILO principles such as those enshrined in Conventions Nos. 87 and 98 that lies at the core of these complaints. The debate on the validity of economic judgements lies elsewhere. (b) Public sector 11. The complaints are raised by public service trade unions and concern the impact of legislative measures on the collective bargaining arrangements in the public sector. One factor in the minds of the complainants is that there is a lack of even handedness in the treatment of the public as opposed to the private sector. Such comparisons are not always easy to make and anyway lie outside the concern of the Committee. None the less it is a feeling that has to be noted. 12. There is a crucial difficulty which is very obvious. Collective bargaining involves the concept of two parties, the employer and the trade union, settling their mutual concern by discussion and negotiation. Where the employer is the government there is an added difficulty. The Government has the wider task of managing the economy and this will in particular often involve the task of seeking to influence the level of settlements in collective bargaining by fiscal and economic argument. It is extremely difficult for the Government to separate the two roles so as to equate bargaining in the public sector with that in the private sector. 13. The usual way in which this separation is attempted is by the establishment of a sound set of bargaining structures in the public sector. These can then operate in the normal way and the wider concerns of government, which need not necessarily be the same in respect of public as opposed to private employment but generally will be, can be imposed from outside the collective bargaining machinery, for example by legislation. (c) Collective bargaining machinery 14. It is difficult and dangerous to generalise about the structure of collective bargaining which is constructed separately by each province, as well as by the federal Government. There are obviously so many variations that cannot be properly assessed in a short study. Consideration of the formal statutory-based machinery does not necessarily give an accurate picture of what actually happens in practice. It is even more difficult to assess the ability of structures to meet pressures which will inevitably be encountered as a result of, for example, a recession or growth of unemployment. 15. Collective bargaining in Canada has been established at both the national and provincial level since the 1960s, so does not have a long history. Three differing aspects of the employer-employee relationship can be distinguished. Consultation is the process most difficult to assess since it will often be to a large extent informal. It follows that a study of the processes laid down may fail to indicate the level of consultations in practice. Bargaining itself is likely to follow fairly closely the rules laid down in the legislation setting it up and the practices developed over the years by agreement between the parties. Finally, and most elusive, it is hard to describe the impact of the power to legislate. The use of legislation of course lies to the hands of one of the parties, the employer. The various ways in which it is used raise difficulties and appear to lead to possible misunderstanding and bad feeling. (d) Legislation 16. The complaints before the Committee arise from specific pieces of legislation and their interpretation and application in practice. The next part of this report will take the form of a more detailed examination of the specific issues raised against aspects of Bill 59 in Newfoundland, Bill 44 in Alberta and Bill 179 in Ontario. 17. At this stage it is necessary to refer to a more general point. It seems important to distinguish the objects of government legislation and its impact. In the context of this study it has been apparent that two features of legislation should be given careful attention. 18. The scope of legislation varies. It may be permanent or temporary. It may affect the employment generally or apply to specific bargaining relationships. Its genesis may be the regulation of the economy on the one hand or the control of the structure of bargaining procedures on the other. Often the two strands will be interwined and the purposes of the legislation difficult to separate. 19. It appears, secondly, that it is possible to intervene more directly in the collective bargaining process. Steps can be taken to affect the outcome of a particular bargain by recourse to one form of the legislative processes. Whereas the process alluded to in the last paragraph may be regarded as strategic intervention, what is being described here is more in the nature of tactical. 20. The standards secured by the Committee on Freedom of Association apply, of course, with equal rigour to action, whatever its character. Viewed from the standpoint of trade unions concerned, it may be difficult to appreciate these distinctions since all actions of the type that leads to a complaint is obviously notable for its perceived deleterious effect. The concerns that this Committee have shown in the past, however, indicate that the distinctions have a bearing on ILO deliberations. Emergency legislation even handedly applied to collective bargaining overall to meet a perceived economic crisis is of a markedly different character to legislation aimed at a particular section of employment or individual collective bargaining process. Here the process of collective bargaining, it must be stressed, covers the totality of the steps available, including, it is important to stresss, any access given to independent arbitration. 21. An attempt will be made in the next section to assist the Committee with indications formulated with these analytical distinctions in mind. III. Case of Alberta - No. 1247 A. Introduction 22. In this case the Canadian Labour Congress (CLC) presented a complaint of infringements of trade union rights in a communication dated 1 November 1983. The complaint was presented on behalf of the Alberta Union of Provincial Employees (AUPE), a component of the National Union of Provincial Government Employees (NUPGE) which is the CLC's second largest affiliate. The Government transmitted its observations in a communication dated 3 May 1984. B. The issues 23. In its letter of 1 November 1983 the CLC alleged that new legislation in Alberta violated Conventions Nos. 87, 98 and 151. On 1 June 1983, an Act to amend various pieces of labour legislation (the Labour Statutes Amendment Act (known as Bill 44)) had been proclaimed. According to the CLC, Bill 44 was aimed at attacking in particular public sector workers in Alberta. One amendment denied the right to strike of thousands of non-essential hospital workers, and another destroyed any degree of impartiality in the arbitration system which had been intended to compensate public sector workers for the loss of their right to strike. (i) Exclusion of certain employees from collective bargaining 24. The complainant referred specifically to new section 21(1) of the Public Service Employee Relations Act which reads as follows: A person employed by an employer in a position classified under the Public Service Act as a budget officer, a systems analyst, an auditor, a disbursement control officer or a hearing officer who hears matters under the Summary Convictions Act, or performing for an employer substantially similar duties to a person employed in any of those positions, [and] in any of the following: the Legislative Assembly Office, the Office of the Auditor General, the Office of the Chief Electoral Officer, or the Office of the Ombudsman or who in the opinion of the [Public Service Employee Relations] Board should not be included in a collective bargaining unit by reason of the duties and responsibilities he has to his employer or for any other reason shall not be included in a bargaining unit or in any other unit for collective bargaining. According to the complainant, this amendment had reversed a series of decisions of the Public Service Employee Relations Board (one of which was unsuccessfully challenged by the Government before the courts) to the effect that the Government could not legitimately exclude certain groups of employees from the right to engage in collective bargaining and be represented by a trade union. 25. On this point the Government, in its communication of 3 May 1984, explained that the legislative amendments with respect to section 21(g) and (h) of the Public Service Employee Relations Act did not represent a significant change in the policies originally contained in those subsections; the exclusion of managerial and confidential employees, those involved in the implementation of personnel-related programmes, those involved in supporting the collective bargaining function, and those involved in the operations of the Government financial control system, activities of the Ombudsman, the courts and the Legislature itself had not been altered, but further refined to reflect continuing alterations in the structure of Government and the nature of employment in these cases. (ii) The arbitration system 26. The complainant stated that the amendments to section 117.8 of the Labour Relations Act and section 55 of the Public Service Employee Relations Act contained in Bill 44 showed the Government's lack of faith in the impartial arbitrators who determine the wages and working conditions of many public sector employees in Alberta in recent months. According to the complainant, rather than reassess the adequacy of cases presented to the arbitrators by government representatives and rather than take direct political responsibility for the imposition of wage controls, the Government had fettered the discretion of arbitrators and imposed an informal system of controls. The amendments, which were identical, read as follows: To ensure that wages and benefits are fair and reasonable to the employees and employer and are in the best interest of the public, the arbitration board (a) shall consider, for the period with respect to which the award will apply, the following: wages and benefits in private and public and unionised and non-unionised employment; the continuity and stability of private and public employment including employment levels and incidences of lay-offs, incidences of employment at less than normal working hours, and opportunity for employment; any fiscal policies that may be declared from time to time in writing by the Provincial Treasurer for the purposes of this Act; and (b) may consider, for the period with respect to which the award will apply, the following: the terms and conditions of employment in similar occupations outside the employer's employment taking into account any geographic, industrial or other variations that the board considers relevant; the need to maintain appropriate relationships in terms of conditions of employment between different classification levels within an occupation and between occupations in the employer's employment; the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; any other factor that it considers relevant to the matter in dispute. 27. According to the complainant, the foregoing provision required that an arbitrator take into account government fiscal policy and thereby sought to impose a system of informal wage restraint. The complainant recalled that in many cases dealing with the rights of employees in the civil service and in essential services where the right to strike has been withdrawn and a system of arbitration substituted, the Committee on Freedom of Association had stressed the importance of impartiality. The complainant claimed that it was dishonourable for the Government to withdraw the right to strike in these sectors and then impose a system of binding arbitration which was not even apparently impartial. 28. To the allegation that section 117.8 of the Labour Relations Act and section 55 of the Public Service Employee Relations Act unreasonably restricted the freedom of arbitration boards and in so doing amounted to a disguised form of wage controls, the Government had replied that amendments concerning the nature of factors to be considered by a board did not, as alleged, impose restrictions. The criteria considered relevant to the decisions were merely listed, including wages and benefits elsewhere in the provincial labour market and the fiscal policies of the Government. The Government stated that the legislation did not stipulate how consideration of these factors was to be employed in the decision-making process. The shifting relevancy of criteria over time was recognised to the extent that "any other factor" might be considered, and given whatever weight was deemed appropriate. The comprehensive result of all listed factors was to give unfettered discretion to a board as to the weight it would assign to any particular criterion. According to the Government, the factors listed were evidentiary rather than substantive in nature. (iii) Other issues 29. The complainant further alleged that many of the amendments contained in Bill 44 were designed to undermine the bargaining authority of trade unions and thereby to impair free collective bargaining. It cited in particular section 74(1) of the Labour Relations Act which required that every trade union appoint only persons residing in Alberta with authority to bargaining collectively, conclude and sign a collective agreement. That section reads as follows: On the service of a notice to commence collective bargaining by or on an employer or trade union, the employer or trade union shall appoint a person resident in Alberta with authority to bargain collectively, to conclude a collective agreement, and to sign a collective agreement on its behalf. According to the complainant this requirement would seriously impair the operation of those small local unions which relied on out-of-province business agents associated with the national or international federations to conduct collective bargaining. 30. In response to this allegation the Government pointed out that section 74 of the Labour Relations Act had been amended to require the parties to collective bargaining to "appoint a person resident in Alberta". The Government explained that where trade union locals were part of a national labour organisation, accessibility to someone with authority to sign and conclude a collective agreement had been a problem in the past. Under the amendments to section 74, a small local union might still utilise out-of-province business agents associated with a national or international network as part of the bargaining committee and to act as a principal spokesman, but someone resident in the province must have authority for the purpose of facilitating the conduct of bargaining, including the conclusion of a collective agreement. 31. The complainant referred to section 87 of the Labour Relations Act which provided that only one strike or lock-out vote might be taken with respect to a dispute. This section reads as follows: During the open period, a bargaining agent may apply to the board to supervise a strike vote or an employers' organisation may apply to the board to supervise a lock-out vote. Only one strike or lock-out vote may take place with respect to a dispute. According to the complainant this provision would prevent unions and employers' associations from canvassing the opinions of their membership as to whether a strike or lock-out should take place in any given set of circumstances; the pro-strike or pro-lock-out vote would become a mere formality to be obtained at the commencement of collective bargaining. The complainant stated there was no sound reason why the members of a bargaining unit should not be free to change their mind as to whether to strike as circumstances changed. 32. In relation to section 87 of the Labour Relations Act, the Government stated that a strike or lock-out was the commencement of the economic contest and therefore such votes were supervised by the Labour Relations Board of Alberta. The changes to section 87 did not prohibit a union from conducting its own vote or canvassing the opinion of its membership as to whether a strike should take place in any given set of circumstances. Such a vote, conducted by the union, was part of the internal administration of the trade union and accordingly the provision did not interfere with a private vote within the union. The Government explained that such a vote or canvassing was not in substitution of a vote supervised by the Labour Relations Board which is a precondition for a lawful strike. Moreover, continued the Government, if the vote carried whether for strike or lock-out, then one party or the other had chosen the economic forum as the means of resolving the dispute. The policy as represented by this provision was that the members were free to strike, but should do so only when that appeared the only means of resolving the dispute. The alternative would be to open the door to a series of strike votes. 33. According to the complainant, section 102.2(2) of the Labour Relations Act as amended by Bill 44 empowered the Minister of Labour to require that the members of a bargaining unit affected by the recommendations of a Disputes Inquiry Board vote whether or not to accept the recommendations. This section reads as follows: Unless a party to the dispute notifies the [Labour Relations] Board of its acceptance of the recommendations of the disputes inquiry board within ten days after receiving a copy of the recommendations from the Minister, the [Labour Relations] Board shall supervise a vote on the acceptance or rejection of the recommendations by the employees or employers affected by the dispute who are represented by that party. According to the complainant this power amounted to unwarranted interference in the internal affairs of a trade union which had the right and responsibility to canvass its own members as to the acceptability of any particular settlement proposal; it believed that the conduct of labour relations ought to be left to the parties and not to the Minister of Labour. 34. With regard to section 102.2(2) the Government stated that the amendments to this section were aimed at recent situations in which a trade union had refused to resolve a dispute notwithstanding that a majority of employees in the unit had wished the dispute to be resolved under certain conditions. According to the Government, this provision ensured that the wishes of the majority in the unit might be expressed on the question of acceptance of a board award. 35. The complainant alleged that sections 105 and 106 of the Labour Relations Act created a new and dangerous offence by prohibiting persons acting on behalf of trade unions or employers from threatening a strike or lock-out in circumstances where a strike or lock-out would not be permitted under the Act. The sections read as follows: Section 105(3). No employee, bargaining agent, or person acting on behalf of a bargaining agent shall threaten to strike or to cause a strike unless the strike is permitted by this Act. Section 106(3). No employer shall threaten to lock-out unless the lock-out is permitted by this Act. The complainant pointed out that the question of whether a strike or lock-out was illegal was a complicated one and the parties should not therefore be prohibited from talking about it. The complainant questioned whether it was the Government's intention to penalise employees under section 105 who, for example, refused to perform work which they believed to be unsafe. 36. With regard to the inclusion of "threats" to strike or lock-out in sections 105 and 106 of the Labour Relations Act, the Government stated that a strike or lock-out was not permitted where the preconditions as set out in the Act had not been satisfied. However, if a strike or lock-out with its serious consequences upon employees and employers might only occur when certain conditions had been satisfied then neither the trade union, employees or persons acting on behalf of the trade union or the employer should be able to threaten an illegal act to achieve other purposes, such as threatening a strike to force an alteration of a collective agreement during its term against the will of the other party. In any case, the Government pointed out that these provisions were being reconsidered primarily because of evidentiary difficulties. The Government added that it was not the intention of this section to penalise workers who refused to perform work which they believed was unsafe. Questions of unsafe work were fully addressed in legislation concerning health and safety. According to the Government, the essential element of a strike was that it was a concerted refusal by two or more employees aimed at compelling an employer to accept terms and conditions of employment; the Labour Relations Board had never interpreted a strike to include a refusal to work when conditions were unsafe. 37. The complainant alleged that several provisions in Bill 44 were designed to make it more difficult for trade unions to obtain and maintain certificates enabling them to represent workers in collective bargaining. It refered in particular to section 49(1) of the Labour Relations Act which reads as follows: Notwithstanding anything in this Act, if an application for certification as a bargaining agent, revocation of the certification of a bargaining agent, a declaration that a bargaining agent is no longer entitled to bargain collectively, registration of employers' organisation or cancellation of registration of an employers' organisation, has been refused by the Board or withdrawn by the applicant, the applicant shall not, without the consent of the Board, make the same or substantially the same application until after the expiration of 90 days from the date of the withdrawal or refusal. According to the complainant this section would prevent trade unions from withdrawing applications for certification when they realised that there was no majority support and resubmitting the application when a majority had been obtained. The only effect of this amendment would be to make organisation campaigns more difficult and accordingly more expensive. 38. The Government explained that amendments to section 49 of the Labour Relations Act required an applicant for certification to obtain board permission to reapply before the expiry of 90 days from the date of withdrawal or refusal of a previous application. It stated that these amendments had been implemented in recognition of the administrative effects on the employer, employees and the Labour Relations Board itself where repeated failed applications are made. 39. The complainant further stated that before the introduction of section 132 of the Labour Relations Act, a trade union's certificate remained in full force notwithstanding the sale or disposition of the business of an employer and that the previous situation had aimed at preventing the employer from selling or transferring his business to an allied operator in order to get rid of a certified trade union. According to the complainant, the new situation (whereby the Labour Relations Board may, upon application by any employer, trade union or person affected, determine what rights, privileges and duties have been acquired or retained) provided an opportunity to successor employers to frustrate the desires of employees who might wish to continue being represented in collective bargaining by their previously certified bargaining agents. 40. As regards the amendments to section 132, the Government stated that these were designed to prevent incongruous results. Before the introduction of these changes, if the Labour Relations Board had concluded that there had been a sale, lease or transfer of a business or part of it, then automatically the certificate and the collective agreement to which the vendor was party applied to the purchaser. The Government stated that the intention of the provision as amended remained to that effect; however if a question arose under section 132, the Labour Relations Board might declare the certificates, collective agreement or proceedings to be binding on the purchaser in contrast to the former provision where the Board was required to so declare. The new provision allowed for conflicts to be resolved by the Labour Relations Board by allowing the Board to amend the certificate or collective agreement in question or even revoke it. The Government stressed that the Board had only been given power permissibly to resolve conflicts. 41. The complainant further alleged that new section 1(w.1) of the Labour Statutes Amendment Act, creating the concept of a "trade union organisation", would create a situation in which the national or provincial organisation which had authority to bargain on behalf of local unions would be subjected to the penalties prescribed in the Act for trade unions. The Government pointed out that the amendments proposed in section 1(w.1) had never been adopted and did not form part of the Labour Relations Act. 42. The complainant referred to section 117.94 of the Labour Relations Act - which was identical to new section 92.2 of the Public Service Employee Relations Act - as the most pernicious example of anti-union legislation in Bill 44. According to the complainant, the clear intention of this section was to cripple a union financially if its members went on a strike. The section reads as follows: (1) If a strike of employees to which this Division applies [i.e. public employees who are prohibited from striking] commences, the employer, notwithstanding any collective agreement or any other provision of this Act, may serve the bargaining agent that represents those employees with a notice of intention to suspend the deduction and remittance of union dues, assessments and other fees payable to the bargaining agent. (2) A notice of intention shall specify the bargaining unit or part of the bargaining unit with respect to which the employer intends to suspend the deduction and remittance of union dues or other fees and a time period of not less than one month and not more than six months with respect to which the employer intends the suspension to be in effect. (3) A bargaining agent affected by the notice may apply to the board within 72 hours of service ... for a determination as to whether or not a strike has occurred. 43. As regards section 117.94 of the Labour Relations Act and section 92.2 of the Public Service Employee Relations Act as amended by Bill 44, the Government stated that, unless the union committed an illegal act, the forwarding of union dues continued. It added that, if the employer served notice that union dues were to be withheld, an expeditious and inexpensive appeal to the appropriate quasi-judicial Board was available and the Board would decide whether a break in collection and remittance should occur based on evidence that the union had or had not contravened the Act in question and illegally interrupted the employer's operations. Adequate and appropriate appeal provisions existed to protect the interests of all parties. 44. With regard to the withdrawal of the right to strike from hospital workers contained in section 117.1 of the Labour Relations Act, the complainant alleged that all hospital workers, including kitchen help, janitors, gardeners, registered nurses, health service technicians and clerical staff, were covered by this new section. 45. The Government stated its position as regards the international standards relevant to the question, namely that freedom to associate was protected but specific association objectives and dispute resolution mechanisms were not. It pointed out that the evolutionary nature of labour relations precluded commitment to a single universal approach to dispute resolution. The objects of association within the context of labour relations, principally the protection of the interests of the workers, could be and were achieved without utilisation of the strike mechanism. According to the Government, public sector collective bargaining must be approached within the larger framework of the governing process itself of which it was but one part. A number of extremely important characteristics had to be recognised in the design of the collective bargaining system intended to be compatible with it: the governing process in Canada was one in which decisions were reached by compromise and response to pressures brought to bear; those interests which influenced the distribution of scarce resources were involved in a political process and must therefore be subject to the contraints normally associated with such participation; in order to maintain the essential and delicate balance within this process, particularly with respect to essential administrative decision-making outside the normal review and evaluation associated with the electoral process, no single interest could be allowed to place other interests at a disadvantage. The Government also pointed out that while the nature of the work performed by public service employees was often unique in most ways, the unique nature of the employer remained constant, in that the Government was subject to scrutiny. Lastly, the Government stated that continuance of the right to withhold services by health care workers would place these interests at an unacceptable advantage and priority over those whose legitimate health care needs must be met by the system, for which there was no acceptable alternative, and as such would compromise the decision-making process relating to the provision of health care. This situation had been altered only to the extent that an alternative to the withdrawal of services had been provided and the Government considered that this was an effective compromise which would permit proper representation of employee interests within a framework that complied with international standards. C. Information obtained during the mission 46. In the course of the mission I had the opportunity of discussing the various issues involved in this case; first, in Ottawa, with representatives of the Canadian Labour Congress (CLC) and the National Union of Provincial Government Employees (NUPGE), and secondly, in Edmonton, with representatives of the Alberta Union of Public Employees (AUPE) and its component divisions. Discussions were also held with the Assistant Deputy Minister of Labour and other provincial government officials. In addition to the oral submissions that were made by the parties, voluminous documentary evidence was communicated to me in support of the arguments put forward by them. 47. From all these discussions it was clear that the three main issues causing concern to the unions as a result of the enactment of Bill 44, which amended both the Public Service Employee Relations Act of 1980 and the Labour Relations Act, were the curtailment of collective bargaining rights for public-sector employees and the manner in which the arbitration procedures functioned, the further restrictions that Bill 44 placed on the right to strike of public employees and the exclusion of certain employees from the bargaining unit. Several other issues, which also formed part of the complaint, were also examined in detail and will be dealt with later. (a) Collective bargaining and arbitration 48. The claim of the unions was that the introduction of Bill 44 had been a clear and deliberate attempt to place further restrictions on the collective bargaining rights of provincial government employees. In addition, the result of Bill 44 had been to destroy any credibility in the fairness and impartiality of the arbitration system, the only dispute-settlement mechanism available to this category of workers. 49. Much information was obtained concerning the manner in which collective bargaining takes place between the Alberta Union of Public Employees, as the certified bargaining agent covering 12 separate divisions of public employees (approximately 38,000 employees), and the Crown in the Right of Alberta, as employer. Under section 50 of the Public Service Employee Relations Act, in the event of a dispute arising, if the the Public Service Employee Relations Board is satisfied that the parties to the dispute have failed to make reasonable efforts to conclude a collective agreement, the Board may direct the parties to continue collective bargaining. Section 51(1)(c) of the Act permits the Board to establish an arbitration board if it is satisfied that not only are there additional items which should be referred to arbitration but also that it is the appropriate time to refer the matter to an arbitration board. 50. At the time the mission took place collective agreements had been concluded in respect of eight out of the 12 divisions of the AUPE; the four groups in respect of which no agreement had been reached being nurses, economic staff, social workers and teachers. 51. The chief negotiator for the AUPE explained that Bill 44 had been enacted following the discontent of the Government at the awards granted by 12 separate arbitration boards in 1983. These arbitrations had been preceded by a decision of the Public Service Employee Relations Board that there had been a failure on the part of the employers to bargain in good faith. The current round of negotiations, commenced in January 1984 for the biennium 1984-85, had taken place in the context of the new atmosphere created by the enactment of Bill 44 and the employers demonstrated an aggressive attitude at the bargaining table. The failure of negotiations led to a request being made in April 1984 by the union for arbitration but this was rejected by the Board. In July 1984, following the failure of mediation, the Board referred the main, or master agreement, to arbitration. 52. Evidence was also submitted concerning the negotiating process which the unions claimed was frustrating and time-consuming. The Public Service Employee Relations Board often served to delay or prevent references to arbitration. In one case involving some 14,000 administrative and clerical workers, negotiations had commenced in January 1984; the Board had, on no fewer than three occasions, rejected an application for arbitration on the grounds that it was "untimely and inappropriate". This was followed by an application to the court which, in March 1985, upheld the Board's discretionary power to establish an arbitration board and stated that the Board's decision in the present case was not "patently unreasonable". It was only after the lapse of at least 18 months from the commencement of negotiations that arbitration was obtained and, as the unions pointed out, the question of retroactivity of wage increases was itself a matter of negotiation. 53. More specifically, as regards the arbitration process, the unions expressed considerable concern over the practical application of section 48(2) of the Public Service Employee Relations Act which limits the subject-matters that may be referred for arbitration. The Public Service Employee Relations Board has jurisdiction to determine whether any particular claim falls within the list of non-arbitral items set out in this provision. In the view of the unions this provision conferred upon the employer the unilateral right to determine terms and conditions of employment. They claimed that all matters covered by this provision should fall within the scope of bargaining and arbitration since they did not entirely concern questions of management prerogative. 54. Examples of matters that had not been considered arbitral by virtue of section 48 included the right of an employer to contract out work of the bargaining unit, questions concerning hours of work and shift work, certain leave periods and the calculation of overtime (section 48(2a)); questions of job evaluation, creation of job descriptions, questions of equal pay for work of equal value (section 48(2b)); selection, transfer, promotion, training, the provision of training in the safer operation of equipment, etc. (section 48(2c)). In a recent case (December 1984) the Public Service Employee Relations Board had determined that a union's proposal to protect the positions of laid-off employees by requiring an employer to give notice of intended lay-offs was non-arbitral because it limited employer discretion. The unions, accordingly, claimed that these examples showed that the Board gave a broad interpretation of section 48(2) in order to protect the managerial prerogative of the employer. 55. Furthermore, the unions claimed that, even where items in dispute were referred to arbitration, the discretion of arbitrators was curtailed by the requirement that they take certain matters into consideration. These criteria are set out in section 55 of the Act, and in particular, oblige arbitrators to give special consideration to statements of government fiscal policy. In the unions' view, these provisions were introduced in 1983 in response to the series of arbitration awards which the Government had criticised as being too generous. Some recent statements of fiscal policy issued by the Government were made available to the mission. According to the unions, arbitrators were required to promote government fiscal policy and, accordingly, the results of arbitration were a reflection of that policy. In other words, such control of arbitral decision-making meant that the Government was, in fact, legislating results for itself as employer. Arbitrators were thus prevented from exercising the degree of independence that was necessary to constitute an adequate substitute for collective bargaining. 56. In this connection, a number of recent arbitration awards were made available to the mission. From these it was clear that the arbitration boards involved had given careful considerations to the provisions of section 55(a) and (b) and had explored at length the conflicting roles of government as the determiner of provincial labour fiscal policy, and as employer. In some cases, the board had, in fact, not considered it necessary to take account of the optional provisions contained in section 55(b) of the Act. In one case, in May 1984, the arbitration board had stated that it did not find the government fiscal policy useful since, inter alia, it did not prescribe the exact amount of the increase. (b) Excluded employees 57. The mission also heard evidence concerning the exclusion, by virtue of section 21(1) of the Act, of certain categories of employees from the bargaining unit for the purpose of collective bargaining. The recent amendments under Bill 44 had broadened the range of persons denied the right to engage in collective bargaining. Some of these categories had previously enjoyed this right. It was recalled that section 21 substantially provides that persons employed who have or exercise management responsibilites or duties or who are primarily engaged in the administration of personnel policies or pesonnel programmes, shall not be included in any bargaining unit. 58. In the view of the unions, the exclusion of such employees was not justified and the amendment, under Bill 44, had removed the right to collectively bargain from a number of groups of employees who had been granted that right by the Public Service Employee Relations Board under the previous statute. The Governmment had used its legislative authority to reverse a series of decisions of the Board. For example, the Board, in one case, had held that employees in occupational health and safety programmes and organisational development programmes and activities were not within the scope of "personnel policies or programmes" defined in section 21(1)(b) of the Act. The Board, in its decision, had stated that personnel, in the sense described, encompassed policies or programmes concerning the recruitment of candidates, the hiring, the appointment and promotion of employees, or the classification, evaluation, discipline or discharge of employees. The unions submitted further examples of cases in which the amendments of Bill 44 denied the right to belong to a bargainging unit to groups of workers, or individual officers, to whom that right had been recognised by the Board. According to the unions, over 400 persons had been denied the right to collective bargaining by the amendments to section 21. (c) The right to strike 59. The mission also heard submissions from the unions concerning the overall denial of the right to strike imposed by section 93 of the Public Service Employee Relations Act on those employees to whom the Act applies. According to the unions, the Government had sought to justify this denial by stating that, although all the employees concerned did not provide essential services, they were so closely linked to those providing essential services as to make it reasonable that they should be treated in the same way; that there was no alternative supply for these services; and that these employees were in a special position to place more pressure on the Government than other citizens. 60. The unions claimed that there was no evidence of close links between essential and non-essential persons and, more importantly, that the withdrawal of labour by non-essential persons would not adversely affect the provision of essential services. Nor was there any evidence that there was no alternative source of supply for the services provided by the employees affected. Moroever, the unions stated, the same rationale had not been applied in the private sector in cases where no alternative source of supply for many services was available. 61. At meetings with representatives of the provincial Government of Alberta, the issues that had been brought to the attention of the ILO and discussed with the mission, were explained in detail. The government representatives explained to the mission that the response by the private sector to the dramatic decline in the economy had been constructive, and the claims of the public-sector unions that they were being selected for special, unfavourable treatment were unique to that category of workers. 62. As regards the collective bargaining process, the government representatives explained that either party had the right to veto matters that were suggested for reference to arbitration. Those which the Public Service Employee Relations Board had excluded from those parts of the master agreement with AUPE in respect of which arbitration had been sought concerned exclusively management rights. The Government conceded, however, that the definition of management rights was a complex question. 63. In this connection, I suggested to the government representatives that the Public Service Employee Relations Board, by refusing to consider certain specific issues as arbitral, was itself arbitrating on these issues. Where arbitration was fundamental in a non-strike situation, it seemed anomalous that the Board, which was a procedural body, should be seen itself to be acting as arbitrator on certain issues. Such a procedure was certain to destroy the unions' faith and confidence in the Board. I further indicated that it seemed that the Government's use of the legislative process to deal with collective bargaining had also led to a loss of confidence by unions in the bargaining system. 64. As regards arbitration itself, the government representatives indicated that, from the limited experience that the Government had of arbitration of interest disputes, there had been no evidence of misuse of the provision (section 55 of the Act) requiring arbitrators to take account of provincial fiscal policy. There was no way of knowing what attention arbitrators paid to the section, but, in any event, the fiscal policy provided wide scope for arbitrators. Examples of government fiscal policy were given to the mission. 65. On the question of exclusions under section 21(1) of the Act, as amended, the Government explained that 260 employees in all were affected by the amendment. These were mainly involved in the personnel policy area and only about 12 in the field of safety and health had been excluded from the bargaining unit. 66. Concerning the denial of the right to strike, I informed the Government generally that the Committee on Freedom of Association was likely to express some concern about the provisions in the legislation on this matter in the light of its stated principles. The government representatives took note of this and informed me that certain issues concerning the right to strike for public employees were presently before the court. 67. I also brought to the attention of the Government the question, also a concern of the unions, of the lack of prior consultation with the unions on legislation concerning matters affecting them or their members. In response, the government representative informed me that any failure to consult on such matters would be caused by the emergency of the situation and not from any systematic policy not to consult. Even on issues that were urgent, public hearings would take place in Parliament, but normally legislation was the result of lengthy and constructive discussions with any parties that would be affected. (d) Other issues 68. During discusssions with the AUPE, I was informed that, although that organisation had initially feared that the use of experienced out-of-province negotiators might have been restricted by section 74(1), the provision as it stood was not a problem. The provincial government representatives explained that this provision had been introduced solely to deal with the practical difficulties which had arisen in the past, when out-of-province negotiators had not been able to be contacted during negotiations or, even at the time of settlement, for signature of an agrement. Given that there appeared to be no serious problem with section 74(1) in practice, I expressed my hope that the parties would be able to discuss its application if, in the future, any problems might arise in this respect. 69. It was explained to the mission that section 87 of the Labour Relations Act (providing for only one strike or lock-out vote with respect to a dispute) had been introduced in reaction to a strike in 1982 by nurses at the Banff Mineral Springs Hospital during which one of the trade unions involved had disputed the results of a pro-strike vote. The Government also pointed out that, under this provision, the unions could meet and discuss possible strike action as often as they wished, but could only apply for one strike vote supervised by the Labour Relations Board. Both sides agreed that there appeared to be no problem with the present situation in practice. 70. It was explained to the mission, in relation to section 102.2(2) (providing for a Labour Relations Board supervised vote on the acceptance by employees of a settlement in a dispute) that the Disputes Inquiry Board was a form of binding mediation set up to examine particular disputes. The provision addressed the question as to whether union executives were free to accept awards or whether individual union members should decide this at a vote and it has not been used as yet. 71. During discussions with the union representatives, it was made clear to the mission that the effect of section 105(3)'s introduction of an offence for the mere threat of illegal strike action had added to their fears as to the real purpose behind Bill 44. They stressed that the danger of this provision was compounded by the fact that the strike action had been broadly defined in the legislation. The Government, on the other hand, pointed out that there were many Labour Relations Board decisions which clarified the definition of strikes. It also stressed that this provision stemmed from the principle of fair collective bargaining in that the threat of illegal action did not contribute to the resolution of a particular bargaining issue or negotiations in general. I pointed out that "persons acting on behalf of the bargaining agent" were also covered by this broad provision. The Government explained that section 105(3) had not been used and that it would be up to the Labour Relations Board, when faced with the application of this provision, to highlight any drafting difficulties regarding the position of union agents. 72. As regards the allegation relating to section 49 (introducing a 90-day delay before the filing of further certification applications) of the Labour Relations Act, it was explained to the mission that, under the Labour Relations Act, the Labour Relations Board was empowered to grant a collective bargaining certificate in three sets of circumstances: firstly, when satisfied that a majority of employees in the unit were paid-up union members having selected the trade union to be their bargaining agent; or secondly, when satisfied that a majority of employees in the unit had applied for union membership and paid a fee (or "deposit") not longer than 90 days before the date of the application for certification, or thirdly, after conducting a vote. Before the amendment only 30 days had applied to fee-paying employees. The union representatives felt that this time extension was yet another example of the real intent of Bill 44. The Government explained that section 49 was aimed at situations where there was not a constant organising drive by trade unions for the purposes of collective bargaining certification. This amendment had been introduced to remove any uncertainty as to a union's real strength in the bargaining unit and to avoid the possible abuse of certification proceedings as, for example, a defence to organising drives by other unions in the same bargaining unit. The Govenment pointed out that since this amendment there had been no evidence of its impact on a trade union's ability to organise and apply for certification. Since a union's own constitution would set out the time limit for the lapse of fee-paying applicants' membership, any procedural problem that section 49 might raise for unions could possibly be avoided by simple amendment of their constitutions. In addition, it was pointed out that the Labour Relations Board had the discretion to conduct a vote even if a majority (51 per cent) of employees in the bargaining unit had indicated its selection of a trade union as its bargaining agent. 73. The union representatives told me that the amendment to section 132 concerning successor rights had no labour relations rationale. The Government explained that the amendment was a reaction to a court decision which had interpreted the previous provision too broadly, thus enabling successor rights to bind employees in "other related activities"; the position on successor rights was now clarified in the Act and the Labour Relations Board only had a discretion, not an obligation, to determine what rights, privileges and duties carried on where a question arose under the provision. 74. From information obtained during the mission concerning section 117.94 of the Labour Relations Act and section 92.2 of the Public Service Employee Relations Act concerning withdrawal of the check-off, it was clear that the complainant's initial allegations related to a draft provision which had not provided for notice and the right to appeal to the appropriate board. The union representatives acknowledged that there was no problem at the moment with sections 117.94 and 92.2 as drafted and currently in force since they had not been utilised. The Government stressed the fairness of the notice, appeal and time limit aspects of the present section; it nevertheless acknowledged that the possibility existed for an employer to suspend all employee check offs in a situation where only one employee had withdrawn his services. It considered that in such cases the appropriate board would have to decide whether an illegal strike had taken place and, if not, order the employer not to go ahead with suspension of the check-off. 75. During discussions on the withdrawal of the right to strike from hospital workers (section 117.1 of the Labour Relations Act), the AUPE representatives emphasised their concern over the indiscriminate nature of section 117.1 in that non-essential staff were covered by the strike ban. This has been discussed in a more general context in some detail above. Evidence was put forward from hospital clerical staff to the effect that their job description and duties did not differ from clerical work carried on outside the hospital system and could not be described as essential. The Government pointed out that there was much uncertainty, both at the national and international levels, as to what was an "essential service". It was explained that the Provincial Government decided to clarify the situation through legislation rather than through Labour Relations Board decisions or arbitration decisions. The Government stressed that only small groups were affected by section 117.1. After it was pointed out to the Government that in some specific cases the international bodies had been very clear in defining the concept of essential services, the question of possible abuse was raised. The Government explained that this question was before the courts in two jurisdictions, namely the appeal of an Alberta Court of Appeal decision to the Canadian Supreme Court (challenging Bill 44 on grounds of violation of the Canadian Charter of Rights and Freedoms - to be heard in October 1985) and an AUPE appeal to the Alberta Court of Appeal which has been stayed pending the afore-mentioned Supreme Court decision. D. Concluding remarks 76. The complaints lodged against the Government of Alberta fall into two groups. A number of them appeared to indicate that recent legislative changes, in particular Bill 44 had changed the process of collective bargaining and submission to arbitration. This it was alleged was in clear breach of ILO principles applying to a structure where limitation on the right to strike is balanced by free access to binding arbitration. Others were individual points of detail. These taken together it was suggested presented serious obstacles to freedom of association and free collective bargaining. Together the two groups of complaints were felt - and the feeling was strong and genuinely held - to form a coherent policy aimed at weakening the public service trade union. I feel it would be helpful to the Committee on Freedom of Association if I summarised the position as I saw it treating each of the groups separately and then assessing the overall position. Collective bargaining and arbitration 77. Bill 44 has made several changes to the structure of bargaining, and recent practice has led to the feeling that major limitations have been imposed and damage done. The system as it is now working raises these issues to which the Committee's attention is specially drawn: (a) the system denies public service employees who are covered the right to strike. It offers in its place access to binding arbitration; (b) the access to arbitration is limited by a jurisdictional clause (section 48(2)). That clause is in effect the equivalent of a management rights clause commonly found in a collective agreement. Two questions were raised: (i) the drafting of the statute enables the adjudicating body to take a wide view of management rights. In such instances there will be a strong counter argument raised by the trade union since the exercise of such rights will undoubtedly, on many occasions, raise the issue that a trade union feels properly falls within the ambit of bargaining; (ii) the procedural methods adopted put the jurisdictional issue in the hands of the Public Service Employee Relations Board. This has the effect of taking from the arbitrator, seized with problems arising from the break down of negotiations, some of the issues in dispute. The trade unions do seem to be hampered by this duality. A study of arbitration awards indicates that the application of these provisions has produced results that narrow considerably the arbitrator's jurisdiction. It appears that the system, which it will be recalled is aimed at balancing the lack of the right to strike, is narrowing the issues that are deemed arbitrable. It is a matter that calls for careful attention. (c) The addition within the statutory rules governing the work of the arbitrator set out in section 55 of the duty to consider "any fiscal policies that may be declared from time to time in writing by the Provincial Treasurer". It appears from what I was told that it is the potential impact of this clause that is feared. It is difficult to see the effect of the clause, taken at face value, on the practice of arbitration. It cannot be seriously contended that such fiscal policy would not be considered by an arbitrator without such direction. The dangers are, however, there: (i) an arbitrator aware of the precariousness of the profession may give paramountcy to this one provision. Although it has to be said that this realistically is a theoretical danger, such a problem exists whether the position is statutory or not; (ii) the Government may issue its fiscal policy in such a form, for example, as a pay increase norm. That would undoubtedly raise the impact of the particular criterion that is being considered. It would seriously fetter the freedom of the arbitrator. Indeed it would prove to change the concept of independent arbitration. Such intervention should be directly, rather than indirectly, statutory. The fiscal policies I was shown show no sign of such interference. They state clearly and succintly general economic factors of concern to the Government. Awards studied cannot be said to show any misuse of this section to destroy independence. (d) exclusions from the process of the Act have been recently extended. This increases the number of public servants who lack the protection of the system. The facts are clearly set out in the evidence given by the parties and summarised above. The numbers under the Public Service Employee Relations Act are not excessive. Whilst it would be possible to argue about the validity, under ILO standards, of a few categories there is no flagrant neglect of the appropriate principles. 78. Attention must be given, however, to the exclusion of health care workers from the parallel bargaining structures secured by the Labour Relations Act. That exclusion is widely drawn and gives too little attention to the important qualification of "essential worker". Its width gives real cause for concern. Individual items 79. These have been set out in detail above and the views of the parties recorded. They can be partially grouped: Four involve statutory changes to legal structures. Undoubtedly these changes make the trade unions' position less favourable, hence the reason for the complaints. They do not appear, however, to involve significant fetters on trade union rights. The Committee will be able to judge them from the views expressed; I found little to add. (a) s. 74(1) - Labour Relations Act Requires a duly authorised representative for collective bargaining to be resident in Alberta. It was made clear that the legislation does not debar the trade unions seeking assistance in bargaining from persons resident outside the Province. (b) s. 87 - Labour Relations Act Allows only one strike or lock-out vote. This restricts certain previously allowable trade union tactics but does not prevent sufficient polling to determine the position prior to calling for a vote. (c) s. 49(1) - Labour Relations Act Where a certification ballot is lost there is provision now for a 90-day moratorium. This affects the current practice of signing members on a short (30 day) basis. No doubt it will lead to a change of tactics. (d) s. 132 - Labour Relations Act Where a business or enterprise changes hands there has been automatic transfer to the new employer of the collective bargaining rights and duties. This provision now allows the Board to intervene. Since it is only likely to do so where difficulties are anticipated the provision appears merely to regulate and expedite normal practice. There was no indication that this provision would be used to change previous grounds for intervention. (e) s. 1(W. 1) of the Labour Relations Act was never promulgated. 80. Three issues require separate comment. (a) s. 102.2 - Labour Relations Act This provides the power to put the recommendations of a Disputes Inquiry Board to the workers concerned after 10 days of issue. Calling for such a vote is seen as a denial of the right of the trade union officials to manage their own union. It does not, however, deprive individual workers of their rights. (b) s. 105 and s. 106 - Labour Relations Act The crime of threatening an illegal strike created by these provisions needs careful consideration. It appears to put employees and trade union officials in some jeopardy. Two problems arise: (i) the definition of a strike is by no means certain and precise. In many instances it is possible that the matter could only be determined by a court. An employee or trade union official either has his conduct widely fettered (fearing possible but not certain transgression) or acts in good faith, believing the strike to be lawful and subsequently finding that it is not. It seems essential that an individual who has no subjective guilt (i.e. knowledge or belief in the illegality) should be protected; (ii) the question of the authority of individuals to act on behalf of the trade union also may arise. Again it is to be hoped that clarification will be undertaken to avoid uncertainty. (c) s. 117.94 - Labour Relations Act and s. 92.2 - Public Service Employee Relations Act These provisions provide that where illegal strike action takes place the employer may suspend the deduction of union dues from employees' pay and their remission to the trade union. This is an instance of fear that the provisions may be used unfairly. The statute appears to allow the stopping of all dues in the unit consequent upon the action of one individual. We were told that such response was most unlikely, except in the instance of specially selected key workers. Again, it is important to note that there may be circumstances where the trade union itself is trying to prevent or end the illegal action. Retaliatory measures in these circumstances would not appear to be fair. Again it is a matter, once aired, that can be dealt with by clarification of the exact scope of the provision. General considerations 81. Consultation: The complaints relate to a period when the perceptions of the Government and the public service trade union were markedly divergent. Routine consultation on matters such as health and safety appeared to have continued unaffected. However, the Government's determination to act quickly as a result of the major downturn in economic activity meant that consultation on the legislative changes in Bill 44 were almost entirely restricted to a public hearing before a committee of the whole legislature. Since the legislation affected procedures in which the Government and the trade union played a joint part, it is unfortunate that more time was not found for consultation. It would appear that now the urgency of the economic pressures has abated, the process of consultation can be re-established. At the very least this will enable misconceptions to be ironed out before changes are promulgated. 82. Attitudes: It was clear that the trade union believed that it had been singled out for a concerted attack on its position and rights. The steps taken by the Government, both in their obvious intent to restrict monetary rises and the individual changes, viewed in the worst light, gave a basis for the formation of such a view. Whether these fears and the harshest reading of the legislative changes reflect what were intended is not easy to determine. I saw little objective evidence to support this pessimistic view although I accept that the fear was genuine. 83. Two aspects of the underlying problem should be mentioned. 1. It is important and practically sensible to review the questions raised as to fears of ways in which the legislation may be used to seriously impede the trade union in carrying out its bargaining role. Many of these, it seemed, could be resolved by an internal understanding secured, for example, by an exchange of letters. 2. The second is somewhat more complicated. The procedures appear to have changed the perceived independence of both the Public Service Employee Relations Board and the process of arbitration. The reasons for this are set out at the beginning of this section. It is vital that consideration be given to ensuring that the independence of arbitration is maintained and seen to be valued. 84. The establishment of better relationships between the parties is desirable and even possible given the present, less alarming economic position and the increased awareness of both unions and Government of their respective responsibilities and obligations. It will not be easy to build mutual trust quickly, but if attention is jointly given to the problems that were disclosed to me better relationships should be attainable. It is clearly in the interests of both parties to make efforts to this end and to eliminate the fears that exist at present of a disregard of ILO principles. IV. Case of Alberta - No. 1234 A. Introduction 85. It was in a communication of 19 September 1983 that the Confederation of Alberta Faculty Associations (CAFA) presented a complaint of alleged violations of trade union rights in Alberta. The observations of the Government of Alberta were contained in a communication dated 21 February 1984. B. The issues 86. In its communication of 19 September 1983 the CAFA alleged that a November 1981 amendment to the Universities Act denied the academic staff of the universities of the Province of Alberta the rights bestowed by Convention No. 87, ratified by Canada. The complainant explained that a new section 17(1)(d.1) empowered the Board of Governors at each university to designate those employees who shall be "academic staff members" and therefore eligible to join the faculty staff associations at each university. The provision reads as follows: After consultation with the academic staff association, [The Board of Governors is entitled] to do one or more of the following: (i) designate categories of employees as academic staff members at the university; (ii) designate individual employees as academic staff members at the university; (iii) change the designation made under the subclauses above. According to the complainant, this provision gave the right to the employer to determine who should belong to a faculty association, contrary to Article 2 of Convention No. 87. 87. The CAFA explained that the present complaint was similar to previous complaints brought by various Canadian workers' associations against the Government, in particular, in 1977, the Canadian Labour Congress and the Canadian Association of University Teachers' complaint (Case No. 893, last examined in detail by the Committee in its 194th Report, paragraphs 92 to 118) and the 1981 complaint of the Alberta Association of College Faculties (Case No. 1055, examined by the Committee in its 214th Report, paras. 332-350). 88. The CAFA pointed out that it had delayed presenting a complaint to the ILO concerning the Universities Amendment Act of 1981 in order to observe what would actually occur in the initial determination by the Board of Governors of who should be designated as academic staff, and hence members of an association under the new legislation. It cited an example of such a determination: the governing authority of Athabasca University declared its intention to designate as "academic staff members" fewer than one-third of the persons who had formerly been members of the Athabasca University Faculty Association by an arbitrary declaration of who were to be excluded on the basis that they were involved in senior management or that their activities did not meet the governing authority's definition of "academic". According to the complainant, the Athabasca University Faculty Association was able to persuade the governing authority concerned that the original definitions were unwarranted, and eventually an agreement on designation was reached. However, according to the complainant, given that the Act continued to give governing authorities the right to revoke designation at will, following consultation, the legislative threat to freedom of association continued. 89. In its communication of 21 February 1984, the Government explained that universities in Alberta were created and structured in accordance with the principle of academic freedom, the right of each individual member of the faculty of the institution to enjoy the freedom to study, to inquire, and to communicate ideas. The Government added that the principle of academic freedom must be safeguarded through appropriate institutional structures and the role of academic professionals in the management of universities had long been recognised. 90. According to the Government, from the complexity of the academic and administrative functions undertaken by such institutions stemmed the recognition that university management is the joint responsibility of the various major elements of the academic community, including faculty, administrators, governing boards and students. In particular, the faculty must play a major role in determining curriculum, subject-matter and method of instruction, research, requirement for degrees, academic appointments and granting of tenure and dismissals, since only the faculty had the competence needed for making and forming judgements on such matters. The Government cited the example of the structure at the University of Alberta where faculty members played a substantial role in administration and in setting the overall university policy; "staff members" are defined in the faculty association collective agreement as all persons who have been appointed to full-time teaching and research positions which includes all senior academics and administrators, such as the president, vice-president and deans. The Board of Governors there consists of, amongst others, the president of the university and two members of the academic staff. The General Faculties Council, which is responsible for the academic affairs of the university subject to the authority of the university, consists of, inter alia, the president, the vice-president, the deans of all the faculties, the directors of each school, the chief librarian, the registrar and elected members from all faculties and schools. The Government explained that all these persons are "academic staff" yet they are active and influential members of the very body that acts as the university board's instrument for internal college management, which includes dealing with questions of tenure, salaries and promotions and the hearing of appeals and disciplinary matters. 91. The Government, therefore, concluded that within the university environment traditional employer/employee or managerial/non-managerial distinctions did not apply. All interest groups active within the institution played a role in its management, including the designation of "academic staff", because the Board of Governors comprised significant staff representation. The Government stressed that the Universities Amendment Act attempted to create a framework within which dialogue regarding more traditional conditions of work issues could take place, while at the same time recognising the unique nature of the universities. In particular, the Act designated the Board of Governors as the final authority and, secondly, the Act required "consultation" which the Government interpreted as including full consultation enabling the persons involved to have reasonable, ample and sufficient opportunity to express their views. 92. Referring to the example cited by the complainant, the Government explained that in early 1983 the Athabasca University Governing Council declared its intention to designate as "academic staff members" fewer than one-third of those persons who were formerly members of the Athabasca University Faculty Association. The Governing Council had felt that many professional staff were involved in senior management positions and their activities did not fall in the Governing Council's definition of "academic"; as a result of consultation between the Governing Council and the Faculty Association, an altered scope of designation had been reached, with the result that many of the persons involved - whose designations had been changed - had been redesignated as "academic staff members". According to the Government, this example proved the effectiveness of consultation as required under the Universities Amendment Act, in particular in view of the fact that the Governing Council had recognised that fragmentation of the professional staff into small bargaining units was not an advantage to the University. C. Information obtained during the mission 93. During discussions with representatives of CAFA, two points were emphasised. First, the union was trying to have consultations, in good faith, with the employers (the Boards of Governors) in an effort to overcome the restrictive nature of s. 17(1)(d.1); such informal consultations had, in fact, worked in the Athabasca situation referred to in the written complaint. Secondly, CAFA stressed its concern that there was no right to appeal a designation of academic staff made by the Boards of Governors under s. 17(1)(d.1). CAFA considered that a possible solution to the situation would be to include provisions in the legislation for third party arbitration on the question of designation, such as exists for collective bargaining deadlocks. I noted that this was a useful suggestion since, in most cases, the job descriptions indicated those members of the university staff who were involved in teaching and research and those who were employed in managerial tasks. 94. The Government pointed out that the Athabasca situation had been particularly tense since the campus had, at the time of the complaint, just been transferred from Edmonton to the northern town of Athabasca (after which the university had been named) to continue its "open university" curriculae. According to the Government none of the three other Alberta universities had had problems, and the employees of the University of Alberta (in Edmonton) had indeed been surprised at the complaint because they had no trouble in negotiating with their Board of Governors the question of academic staff. Nevertheless, the Government recognised that the legislation did not address the radical differences in the four universities of the Province. I pointed out that, although no problems were occurring at present with the legislation, CAFA wanted some form of machinery to protect against situations such as had occurred in Athabasca. To this the Government replied that since the other universities had managed to arrive at designations, no major change in policy could be envisaged. I indicated that informal machinery such as a letter of understanding would perhaps suffice. D. Concluding remarks 95. The issue here is a simple one. The power given to the employer to designate staff as academic or not gave a high degree of control over the nature and size of the bargaining unit. Industrial relations in universities, which have a large degree of participation and consultation, is of an individual nature. Relationships have been excellent but the designation power led to a serious problem in Athabasca University, a body which because it concentrated upon "distance learning", that is to say students not on campus, has a special staff structure. That problem has been satisfactorily resolved but the Staff Association has been alerted to a weakness in the law. 96. There is no doubt that a unilateral power to designate does potentially put the trade union at a serious disadvantage. All that is being sought is access to independent arbitration of disputed designation. This appears to be a necessary safeguard to protect the integrity of the bargaining unit. It seems most unlikely that the machinery will often be used for the relationship appears to be good. Consideration could, accordingly, be given to the introduction of the simple safeguard that is being sought by the union. V. Case of Ontario - No. 1172 A. Introduction 97. The complaint of the Canadian Labour Congress (CLC), on behalf of its affiliated organisations the National Union of Provincial Government Employees (NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian Union of Public Employees (CUPE), was contained in a communication dated 15 November 1982. The CLC supplied additional information in communications dated 15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The World Confederation of Organisations of the Teaching Profession (WCOTP) presented its complaint, on behalf of its affiliates the Canadian Teachers' Federation and the Ontario Teachers' Federation, in a letter of 8 February 1983 and further information in a communication of 7 March 1983. The Service Employees International Union (SEIU) presented its complaint in a letter dated 6 April 1984. The Government sent its observations in communications dated 25 April 1983 and 7 June and 16 October 1984. B. The issues 98. In its initial communications the CLC alleged that new Ontario legislation, "the Act respecting the restraint of compensation in the public sector of Ontario and the monitoring of inflationary conditions in the economy of the province" (known as Bill 179), violated Articles 3 and 4 of Convention No. 87 and Article 4 of Convention No. 98. The Act came into force in late 1982 and covered employees of the Ontario Public Service, all Ontario municipalities, municipal and provincial corporations, commissions, boards and agencies including universities, colleges, hospitals and health boards. In particular, the CLC alleged that of the Act took away the right of the workers covered to organise and bargain collectively because it allowed the Provincial Government to extend, arbitrarily, collective agreements for a 12-month period during which it could unilaterally determine employees' wage increases. In addition, according to the CLC, the Inflation Restraint Board established under the Act had been given sweeping powers to resolve disputes without reference to the unions or employees concerned. 99. The WCOTP, in its communication of 8 February 1983, stated that Bill 179 constituted an unjustifiable interference with bargaining rights. It pointed out that Bill 179 overrode the usual collective bargaining process prescribed in various specific Provincial Acts by imposing legislated limits on the wages of public sector employees, including teachers, because it took effect "notwithstanding any other Act, except the Human Rights Code, 1981 ...". The WCOTP further stated that no grave national emergency existed in Ontario such as to justify this substantial restriction on the fundamental right to collective bargaining, the Government's professed commitment to the reduction of inflation not being a sufficient reason for this suspension by legislative action. 100. According to the additional information provided by the CLC on 16 February 1983 the Act in fact had become law on 15 December 1982 with retroactive operation as from 21 September 1982 and applied also to privately owned, para-public sector companies contracted to or funded by the Provincial Government, for example, nursing homes, ambulance services, garbage contractors as well as to certain private charitable organisations and non-government agencies such as the Art Gallery of Ontario and the Botanical Gardens (section 6). The complainant stated that the coverage of the Act might further be extended by regulation by the Lieutenant Governor in Council, without legislative discussion (section 25). 101. The CLC explained its dissatisfaction with the Act as follows: the Act imposed a 5 per cent increase on the compensation received by employees concerned for at least a one-year period (called "the control year"), regardless of the rate of inflation and the value of wage and benefit settlements in the private sector (section 12); it "rolled back" or expropriated, without compensation, the existing contractual rights of employees under collective agreements which extended beyond 1 October 1983 and limited the increase in compensation and monetary benefits payable to such employees under such agreements (sections 8, 9, 10, 11 and 12); it removed the right to strike or to binding arbitration in so far as such activities related to efforts to obtain monetary benefits in excess of those dictated by the Act (section 13); it appeared to allow the parties to a collective agreement to amend non-monetary issues of that agreement without providing a mechanism for such amendment because the right to strike and the right to binding arbitration were removed (section 15); it prevented a union from negotiating a first agreement with an employer where the certification of the bargaining unit had occurred after 21 September 1982 because employees could only strike or obtain binding arbitration on non-monetary issues (section 13, in conjunction with Ontario Regulation 57 of 21 January 1983 made under the Act whereby first agreements made after 21 September must comply with the 5 per cent increase in compensation laid down in the Act); it discriminated against public sector employees by subjecting them to the above restrictions whereas private sector employees were not so restricted. The complainant pointed out, in addition, that even if the parties to a collective agreement had agreed to an increase in wages or monetary benefits in excess of that permitted by the Act, the Inflation Restraint Board - consisting of appointed officials of the Ontario Government - could issue an order preventing the parties from implementing their agreement (section 21 of the Act). In addition, the orders of the Board might be filed with the Supreme Court of Ontario so that they had the force of a judgement, thus allowing the Government to enforce them through any of the judicial methods of enforcement, such as imprisonment and fines. 102. According to the CLC, such restrictions on collective bargaining as listed above violated Article 4 of Convention No. 98 and Article 7 of Convention No. 151, and the lack of disputes settlement machinery infringed Article 8 of Convention No. 151. Moreover, the CLC considered that Article 3 of Convention No. 87 was violated because of the alteration, by legislation, of the conditions of work over a certain period of time and the removal of the unions' possibility to act through negotiation. The CLC pointed out that under section 2(d) of the Canadian Charter of Rights and Freedoms, incorporated as part of the Federal Constitution in 1981, all persons had the right to freedom of association in Canada; in view of the new legislation, public servants and other individuals covered by the Act in Ontario were now denied freedom of association. 103. The WCOTP, in its communication of 7 March 1983, recalled that, under the Ontario School Boards and Teachers Collective Negotiations Act 1975, a collective bargaining process had been established according to which - if initial negotiations between teachers and their employing boards failed - the following action could be taken: initial fact-finding, mediation, voluntary binding arbitration, final offer selection, strike or lock-out. According to the complainant, free collective bargaining under this process had not resulted in inflationary wage pressures; in fact, in every quarter since 1978, the rate of teachers' salaries had fallen below the rate of inflation producing a cumulative decline in purchasing power of more than 7 per cent. 104. In addition, the WCOTP listed its principal criticisms of the new legislation as follows: in cases where negotiations relating to the 1981-82 contract period were continuing, Bill 179 terminated negotiations, declared the previous agreement to be still in force until the first anniversary following 1 October 1982 (called "the transition period") and imposed a wage increase not to exceed 9 per cent. Agreements already in effect and expiring before 30 September 1983, were deemed to be extended for a period of 12 months (again, "the control year"), with a wage increase of 5 per cent. According to the WCOTP, Bill 179 also forbade the payment of any merit award, service-related increment, long-service bonus or allowance in respect of successful completion of a training programme or course of education, regardless of whether such payments were provided for in collective agreements, if the effect would be to increase total remuneration to a level above $35,000 per annum. This extension by legislation of collective agreements eliminated the possibility of negotiation even on non-monetary items, such as conditions of work, and, since strikes were not permitted during the life of a contract, Bill 179 amounted to denial of the right to strike; thus, affected employees would have no way to make any changes to their working conditions. 105. Lastly, the WCOTP criticised the membership and procedures of the Inflation Restraint Board set up under Bill 179 - in particular the lack of appeal of its decisions - as well as the wide powers conferred on the Lieutenant Governor in Council. The WCOTP stated that where the right to strike was removed, it was imperative to replace it with an adequate dispute resolution mechanism - Bill 179 left affected employees with no such mechanism. 106. In its communication of 28 October 1983, the CLC referred to a recent decision of the Supreme Court of Ontario (Broadway Manor case) and the Government's public announcement of its intention to extend the duration of its control programme by legislation at the beginning of November 1983. The decision, dated 24 October 1983, ruled that section 13(b) of Bill 179 was invalid because it infringed the right to freedom of association - which included the right to change bargaining agents, to bargain collectively and to strike - which was guaranteed under the Canadian Constitution. Only this section of the legislation was held to be unconstitutional because it restricted collective bargaining over non-compensation matters which, according to the Court, could not be justified as being reasonably necessary to control wage increases. On 10 January 1984, the CLC sent certain documentation referring to the replacement of Bill 179 by new draft legislation (known as Bill 111) which, if enacted, would take effect as of 1 October 1983. 107. On 6 April 1984 the Service Employees International Union presented its submissions against Bill 179 reiterating the above-mentioned points for dissatisfaction with the legislation (it removed the right to change bargaining agents, to bargain collectively on non-monetary as well as monetary matters and the right to strike or resort to interest arbitration for a broadly defined public sector) and adding that the legislation is not in harmony with Convention No. 154. 108. Referring to the importance of the independence and autonomy of parties to the collective bargaining process and the voluntary negotiation of collective agreements recognised by the Committee on Freedom of Association as fundamental aspects of Convention No. 98, the SEIU claimed that Bill 179, by interfering with existing provisions of freely negotiated collective agreements, constituted an unnecessary and unacceptable interference in the results of free collective bargaining and contravened Convention No. 154. It cited the example of the Sensenbrenner Hospital employees who were awarded an 11 per cent overall pay increase in the summer of 1982 by a three-man interest arbitration board and some of whom - since they were among the lowest paid workers in the hospital sector - were awarded a supplementary award in October 1982. On 2 November 1983 the Inflation Restraint Board ruled that the special wage increases contained in the supplementary award were null and void to the extent that they exceeded the 5 per cent limit prescribed by the Act, and ordered that any wages received by the 72 employees concerned in excesss of the prescribed increase were to be repaid to the hospital. In January 1984 the Board had refused a request made by the SEIU that it recommend, under section 17(5) of the Act, that the employees of the Sensenbrenner Hospital be exempt from its application. According to the SEIU, there had not been any recommendations or exemptions granted to workers under these provisions of the Act. 109. Lastly, the SEIU criticised the Government's statements that conditions of work other than compensation were not disrupted by Bill 179, that non-monetary aspects of a compensation plan might be made under section 15 of that Act, that the right to select a bargaining agent was only delayed for at most one year and, most importantly according to the complainant, that although the scope of collective bargaining had been temporarily narrowed it still covered trade-offs between wages and benefits and the determination of non-monetary terms and conditions of employment. The SEIU alleged that this last justification was entirely inaccurate and unfounded especially in view of the Act's suspension of the obligation to bargain in good faith as required under the Labour Relations Act. 110. Responding to the complaints in its communication of 25 April 1983, the Government stated that its adoption of the new legislation was a responsible and necessary action, taken only after consideration of a wide range of restraint options to overcome the worst recession since the Great Depression. According to the Government, in 1981 and the first half of 1982 public sector wage increases were higher than private sector settlements in Ontario and there was evidence that administered prices - prices set or directly authorised by ministries or public agencies - were a major factor perpetuating inflation. 111. The Government pointed out that the compensation restraint programme provided for a temporary (in most cases, only one year) constraint on wage increases of up to 5 per cent or 9 per cent, allowing conditions of work other than compensation to be changed by mutual agreement (section 15 of the Act). It stated that special provision was made for workers with low incomes (section 12) and emphasised that the Lieutenant Governor in Council could exempt compensation plans from the Act (section 25). According to the Government, trade-offs between wages and benefits could be made with the permission of the Inflation Restraint Board under section 14, and it listed examples of such trade-offs. 112. As regards the alleged infringement of Convention No. 87, the Government emphasised that the legislation in fact favoured worker organisations in one way because workers with collective agreements were automatically entitled to a 5 per cent wage increase whereas other workers could receive less (section 12(1)(d)). For workers already represented wishing to change certified representatives, the Government admitted that the extension of collective agreements under the Act would delay this for, at most, one year, but pointed out that under the normal collective bargaining system such a change was in any case also subject to a time-limit - of 90 to 120 days, for example under the Labour Relations Act. As for the alleged limitation on the unions' freedom of action, the Government stated that this was incorrect: while the scope of negotiations had been temporarily restricted, the collective bargaining system remained in place and unions were free to organise their activities, the right to strike and to binding arbitration only being delayed temporarily. An example of this freedom of action was the case of groups which had been certified before 21 September 1982 but which had not attained their first collective agreement. Under Regulation 57/83 made under the Act, such groups could use all of the normal collective bargaining procedures - including strike action - to arrive at first collective agreements on condition that the agreement provided for a compensation increase of 5 per cent for a 12-month period commencing between 1 October 1982 and 1 October 1983 and that the provisions of the whole agreement were substantially comparable to those of employees in related labour markets. 113. As regards the alleged infringement of Conventions Nos. 98 and 151, the Government stated that the Act did not discontinue the voluntary negotiation machinery but merely prolonged collective agreements, with specified provisions for wage increases, for the period stipulated. It stressed that non-monetary terms and conditions could be altered by mutual agreement and the parties were free to agree to use mediators and arbitrators in this connection. According to the Government, there had been quite a few instances of collective bargaining resulting in the full 9 per cent being granted for the 12-month period prior to the control year under section 10 of the Act. As for the limitation on disputes settlement procedures, the Government stated that, under section 14 of the Act, the Inflation Restraint Board could arbitrate, giving decisions which were binding on the parties and also indicating its reasons although the Act did not require it to do so. Moreover, the Government pointed out that under sections 17 and 25 of the Act groups of employees could be exempted from the application of Part II of the Act; it recognised that these provisions had not yet been utilised. 114. In its communication of 7 June 1984, the Government referred to the appeal lodged against the decision of the Divisional Court of the Supreme Court of Ontario dated 24 October 1983 which held section 13(b) of the Inflation Restraint Act to be invalid. The Government enclosed extracts from Hansard containing statements made by the Attorney General of Ontario which reflected the Government's concern over "the implications of the very broad interpretation given by the Court to freedom of association". 115. In its communication of 16 October 1984, the Government again referred to the economic crisis of 1981 which had led all Canadian provinces except Manitoba to introduce public sector restraint programmes. According to the Government, 71 per cent of all agreements and 69 per cent of all employees affected by the Inflation Restraint Act had been subject to controls for 12 months only. It also presented statistics to show that after the Act had been introduced there had been a dramatic decrease in the rate of inflation. 116. As regards the negotiation of non-monetary issues under section 15 of the Act, the Government pointed out that the Ontario Ministry of Labour had continued to offer and provide mediation services to parties covered by the Act who agreed to bargain non-compensatory issues, and negotiations had taken place on such items as grievance procedures, pupil-teacher ratios and job security. The Inflation Restraint Board had made 655 decisions and orders between 1 December 1982 and December 1983, a number of which resulted from issues which had arisen in negotiation. The Government contended that such mediation fulfilled the requirements of Convention No. 151. 117. The Government also pointed out that the Lieutenant Governor's power under the Act to terminate the application of the controls to any compensation plan had been used with respect to certain municipal employees' retirement plan (Regulation 92/83) and to exclude certain handicapped people, persons not covered by minimum wage legislation and persons who received less than 50 per cent of their expenses from a government employer (Regulations 819/82 and 844/82). Moreover, the Act required the Inflation Restraint Board to investigate price increases in government services called "administered services" referred to it by the Minister. For example, in 1982, the Board had investigated a price increase for Northern and Central Gas which had been approved by the Ontario Energy Board, and had concluded that the price increase did not comply with the Minister's criteria; the proposed price was subsequently reduced to bring it into compliance. Moreover, the Cabinet Committee on Administered Prices had maintained an increase of only 5 per cent in over half the cases submitted to it, e.g. for legal aid fees, beer prices, school-bus tariffs, tuition fees for Canadian students, provincial park fees, resident fishing licence fees and Northern Telephone Ltd. charges. Thus 92 per cent of the adminstered prices had kept within the 5 per cent increase guide-line. 118. The Government explained that the legislation which replaced Bill 179 as of October 1983 - the Public Sector Prices and Compensation Review Act (known as Bill 111) - provided for full collective bargaining of both compensation and non-compensation issues and allowed the normal strike or arbitration procedures when the parties were unable to conclude a collective agreement. 119. Lastly, the Government referred to the SEIU's allegations, stating that at no time during the operation of the Inflation Restraint Act had the right of employees to establish, join and participate fully in organisations of their own choosing been withheld. Only situations such as that which had arisen in the Broadway Manor case had been affected by the Act; in that case only certification had been delayed and certification under Ontario law was not a prerequisite to the lawful establishment of or participation in a "new" union. The Government stated that its appeal to the Ontario Court of Appeal against the Divisional Supreme Court decision in the Broadway Manor case had been heard on 4 June 1984 but the decision had not, at the time of the Government's reply to the ILO, been rendered. As for the situation in the Sensenbrenner Hospital, the Government denied that the Inflation Restraint Board had ordered a recovery of the excess payments that had already been made, but merely referred the matter back to the parties. C. Information obtained during the mission 120. During the mission's stay in Toronto I had the opportunity to meet representatives of the following organisations: Service Employees International Union (local 204), the Ontario Public Service Employees' Union, the Canadian Union of Public Employees and the Ontario Teachers' Federation. These meetings were followed by a meeting with a number of Government officials representing the Province of Ontario. In the course of my meetings with the trade union organisations I obtained information in the form of oral presentations and written submissions. Written submissions and documentation were also supplied on behalf of the provincial government. 121. At my initial meetings with the Canadian Labour Congress in Ottawa the problems referred to in the complaint resulting from the coming into force, on 21 September 1982, of the Inflation Restraint Act (Bill 179), had already been mentioned. 122. Since the main thrust of the arguments advanced by all the trade unions was virtually identical as regards what they considered to be a violation of their trade union rights consequent upon the enactment of Bill 179, and to some extent, the later enactment, on 10 October 1983, of the Public Sector Prices and Compensation Review Act (Bill 111), it will suffice here to summarise these arguments and the information supplied in substantiation of them. 123. I should, at this point, state that I emphasised to all the parties that no formal allegations concerning Bill 111 had been submitted to the ILO and that, strictly speaking, this legislation fell outside my terms of reference. However, since Bill 111 is directly relevant to the issues raised in the formal complaints and is the latest act by the Government in the area of public sector collective bargaining, I felt that it was appropriate to record the unions', as well as the Government's views on this later enactment and its effect on public sector bargaining. Indeed, at the time of the mission, Bill 111, itself a temporary enactment, was due to expire. 124. The principal claim of all the unions was that the enactment of Bill 179 in September 1982 not only put an end to collective bargaining, and indeed to trade union activity, for a period of almost two years, but also prevented the coming into force of collective agreements freely concluded prior to the Act. Generally, agreements that were due to expire on or after 10 October 1981 would be extended for a period of 12 months provided that compensation rates did not exceed 9 per cent. These agreements on their expiry and every other agreement would be deemed to include a provision increasing compensation rates by 5 per cent for the ensuing 12-month period. The unions argued that it was questionable that the economic situation in the country, and more specifically in the province, justified these measures and even if there were economic difficulties there was no justification for what amounted to a virtual ban on trade union activity for the period during which the Act was to remain in force. In effect, since collective bargaining was excluded, even on non-monetary issues, there could be no arbitration, which was an accepted substitute for the denial of the right to strike in the public service. 125. The SEIU, the majority of whose 33,000 members were employed in the hospital and nursing home sector said that it had always accepted the substitution of the right to strike for the right of independent and binding third party arbitration. Bill 179, and subsequently Bill 111, showed that the Government supported neither the right to strike nor truly independent and impartial arbitration. Similar arguments were advanced by OPSEU, representing 80,000 members, who added that the 5 per cent limit on wage increases had widened the gap between lower-paid and higher-paid employees. Some 15,000 of their members employed in part-time employment, for whom protracted negotiations had resulted in a two-year agreement for a 9 per cent and 11 per cent increase in increment, had been denied the 11 per cent increase on the enactment of Bill 179. Other categories of workers had been similarly affected. OPSEU also introduced witnesses who described the effects of Bill 179 on laboratory workers and on the support staff of community colleges (approx. 5,000) who had been guaranteed, during the 1981 bargaining operation, that their wages would be increased by 20 per cent over the following three years. All of these categories had suffered under the wage controls imposed by Bill 179. 126. The CUPE emphasised that Bill 179 not only restrained compensation but eliminated the right to bargain effectively with employers over non-monetary provisions in a collective agreement. This, they added, had been criticised by the Ontario Court of Appeal (Broadway Manor case) in a decision issued on 22 October 1984, a decision that was of little practical relevance since Bill 179 had then, for all practical purposes, been replaced by other legislation (Bill 111). CUPE also emphasised that during the existence of Bill 179, workers governed by the Labour Relations Act were effectively deprived of the right to strike. In addition, the possibility of resorting to arbitration by workers governed by the provisions of either the Hospital Labour Disputes Arbitration Act or the Crown Employees Collective Bargaining Act was effectively eliminated. 127. Another point made by CUPE was that, as a result of Bill 179, they had originally claimed that the right to organise was infringed since workers could not change bargaining agents during the control period. This was another matter which has been settled by the Court of Appeal of Ontario in the Broadway Manor case. The Court held that the effect of Bill 179 was not to extend collective agreements themselves, but only to extend the terms and conditions of such agreements. Bill 179 did not, therefore, curtail the right to change bargaining agents. As stated above, however, the decision in the Broadway Manor case was only handed down on the expiry of Bill 179. 128. CUPE provided a number of examples of some 100 agreements, concluded prior to the enactment of Bill 179, that had been "rolled back" by the Act, and explained that many low-paid workers were affected by this measure. This union also mentioned that, in the hospital sector, a close wage relationship had always existed between workers represented by CUPE and those represented by SEIU. However, the SEIU hospital members, who do exactly the same work as CUPE members, were awarded 11 per cent in a one-year contract arbitrated just prior to the institution of Bill 179, whereas CUPE members received a maximum of 9 per cent in the first year of their agreement, pursuant to the provisions of Bill 179. As a result CUPE members were adversely treated in comparison with SEIU members simply because of the luck of different termination dates of collective agreements. 129. The Ontario Teachers' Federation, which represents over 104,000 teachers employed in the publicly supported elementary and secondary schools in Ontario, also complained that Bill 179, and later Bill 111, had the effect of overriding the negotiating process established under the School Boards and Teachers' Collective Negotiations Act, 1975, as amended in 1983. In its view no economic emergency existed in Ontario to justify the enactment of Bill 179. In addition, the right to strike which teachers have in Ontario, was suspended during the control period imposed by the Act. Detailed information was supplied by the Federation showing the impact of Bill 179 on the wages of teachers in the province. 130. The Public Sector Prices and Compensation Review Act, 1983 (known as Bill 111), which replaced Bill 179 did not, according to the unions, restore free collective bargaining but imposed, in a more subtle manner, a further period of restrictions on collective bargaining. In effect, Bill 111 provided that, during a "restraint period" of 12 months, the Inflation Restraint Board was empowered to fix and monitor all changes in compensation in the same broadly defined public sector as Bill 179, in order to determine whether compensation changes complied with the fiscal policy of the province as determined by the Treasurer of Ontario. The Treasurer had announced that increases in average compensation should not exceed 5 per cent during this restraint period. Furthermore, the Government had announced that government grants and transfers to publicly funded institutions covered by Bill 111, as well as allocations to its own civil servants would provide for average compensation increases of up to 5 per cent. While compensation increases in excess of 5 per cent were possible, the Inflation Restraint Board, the Government and leaders of municipalities had made it clear that any attempt to exceed the 5 per cent guide-line would result in lower transfer payments from the province. 131. In submitting these comments on Bill 111, both CUPE and SEIU also referred to the requirement, under section 10 of the Bill, that arbitrators take into account the "employers' ability to pay [...] in the light of existing provincial fiscal policy". According to the unions, the Government, using this device, could unilaterally determine the funding of public-sector institutions, and the reliance on the employer's ability to pay effectively meant that the Government could also unilaterally establish wage rates. Any claim of independence and impartiality of the arbitration process was also undermined. The Canadian Teachers' Federation submitted similar comments in connection with Bill 111. 132. In addition, all the unions referred to the fact that a number of a well-known interest arbitrators had rejected the criterion of "ability to pay" for public-sector wage determination. Statements made by some leading arbitrators were produced in which they referred to the "atmosphere of intimidation" which the legislation engendered and to the public statements made by the Treasurer indicating that, unless the economic policy of the Government was followed, restrictive legislation of a long-term nature would be introduced. 133. With the representatives of the Government of the Province of Ontario I raised all the issues that had been brought to my attention during my meetings with the various public sector unions. The Government representatives claimed that compelling reasons of national and provincial economic interest had led the Government to conclude that it should control wage rates in the public sector. In 1982, they explained, Ontario was experiencing recession, double-digit inflation (11-12 per cent), loss of international competitiveness and loss of jobs in the private sector (approximately 164,000 jobs in Ontario alone). The restrictions on public-sector wages contained in Bill 179 were imposed as an exceptional measure. The Bill was not intended to restructure labour legislation in the province, nor was it intended to be permanent. Bill 179 imposed wage controls for only 12 months for the majority of the employees, and only 31 per cent of the employees affected were subject to the transition period which could extend controls for two years. No employees were now affected by Bill 179. 134. The subsequent legislation (the Public Sector Prices and Compensation Review Act, 1983 - Bill 111), established a guide-line for public-sector increases for a one-year period. In the case of public-sector employees whose agreements were determined by interest arbitration, the new legislation required interest arbitrators to cost any change in the terms of collective agreements and to consider the employer's ability to pay. In the case of public-sector employees who negotiated agreements (including those who had the right to strike) the legislation required the filing of information with respect to any changes in the compensation plan. If an arbitrator determined, or the parties agreed to wage increases in excess of the 5 per cent guide-line, the legislation had no mechanism to "roll back" the wage increases thus determined or negotiated. The Government representatives added that, since Bill 111 was now at an end, no wage restraint legislation was presently in force in Ontario. 135. The Government representatives further explained that, in considering the economic situation in 1982 a number of options for action had been considered, including a national programme of wage and price controls. Because a consensus with the other provinces could not be reached on this, and because of the difficulties encountered by reason of the nature of the Province of Ontario itself as regards a possible programme covering public and private-sector workers, a programme controlling prices and wages in the public sector alone was decided. 136. The Government emphasised that safeguards were provided to protect workers' living standards. In addition to controlling prices, the rate of inflation was lowered (to less than 11 per cent during the third quarter of 1982). Since Bill 179 was introduced, inflation had continued to drop, and for the first quarter of 1985, it stood at 3.6 per cent. Public-sector job security and employment was also maintained at a time when there was much job loss in the private sector. Fair and reasonable increases were also ensured for employees covered by the legislation. In this connection, the Government supplied statistical information showing that increases under the legislation were comparable to private-sector wage increases and had in fact exceeded private-sector wage increases since the fourth quarter of 1983. Bill 179 also made provision for minimum increases, low-income earners and for wage adjustments. It also permitted newly certified unions, i.e. those certified prior to the enactment of Bill 179, to freely negotiate compensation increases for the period leading into the control period in their first agreements. The ability to change non-compensatory items of a collective agreement by mutual consent was also maintained by the Act as was eventually shown by the decision of the Ontario Court of Appeal to this effect in the Broadway Manor case. 137. Referring to the SEIU complaint that Bill 179 had suspended the right to change bargaining agents, the right to bargain collectively on non-monetary items and the right to strike or to resort to interest arbitration, the Government representatives referred to the decision of the Court of Appeal in the Broadway Manor case which established that the union was wrong in its allegations. The Court had, however, expressed some doubt that the employees could strike or resort to arbitration without actually making any decision on this point. 138. The Government added that a wide range of consultations had taken place prior to the enactment of Bill 179 and there had been a broad political consensus for its adoption. The Government had been satisfied with the results of Bill 179 and had replaced it by Bill 111 which was not an exceptional measure taken in a period of crisis. Bill 111 was intended as a further step towards a normal situation and re-established collective bargaining in the public sector. The continuing existence of the Inflation Restraint Board was merely for the purpose of ensuring its participation in current litigation. 139. As regards the requirement, under Bill 111, that interest arbitrators take account of provincial fiscal policy and the ability to pay of the employer, the Government representatives pointed out that sums transferred to public institutions had always been decided upon by the Government. Under Bill 111 the amounts were clearly stated. In cases where the 5 per cent norm was exceeded either by arbitrators or by the needs of a public institution ways could be found to provide the extra funds required. 140. Regarding the unions' concern that the Government had appeared to be constantly trying to find ways of reducing flexibility and placing pressures on arbitrators, which eroded and damaged confidence in the arbitration system, the Government representatives emphasised that arbitrators were merely asked in Bill 111 to keep certain criteria in mind. Many did not feel bound by these criteria and some 200 awards had been made in 1984/85, the majority of these exceeding negotiated settlements. Under the Labour Relations Act, a panel of arbitrators had been established for grievance disputes and it was generally from this panel that arbitrators were selected to deal with interest disputes. The Government admitted that its information on wage settlements in certain sectors (e.g. in the municipalities) was inadequate but that efforts were being made to resolve this problem. 141. On the question of "roll backs", the Government admitted that this had been seen to be harsh but again stated that they had been dictated by economic necessity. The Government also pointed out that it could not recall, apart from one or two cases, that the problem of the absence of negotiations on non-monetary items to have been a significant one. 142. The Government also admitted that there might be some longer-term effects of Bill 179, for example on job evaluation and classification programmes, but it was expected that the return to collective bargaining would resolve any anomalies that remained. It was also clear that, in some cases, employers had taken advantage of the legislation by refusing to pay negotiated wage increases. This was, however, a matter for the courts and one over which the Government had little control. 143. Referring again to the decision in the Broadway Manor case and the problem of changing bargaining agents during the one-year period of control under Bill 179, the Government explained that it had considered this matter prior to the Bill's adoption. It had been thought that it was inappropriate for a change in bargaining agent to take place during that period since the incoming union would not be able to negotiate. The Government had discussed this question with the unions whose reaction to the problem had been a mixed one. In any event, according to the Government, since the public service unions were well-established it was unlikely that any challenge would have been made during the control period. The Government recalled that newly certified unions were not affected by what was subsequently proved - by the decision in the Broadway Manor case - to be a false problem. D. Concluding remarks 144. An obvious feature of this complaint is that it concerns the provisions and effects of the Inflation Restraint Act, 1982 (Bill 179) which is no longer in force. Indeed, that statute was followed by Bill 111, a measure which itself is due to expire at the end of September 1985. No further legislation in this area has been proposed at the present time. It is none the less important to complete the process of assessing Bill 179 against ILO standards. Even though it is no longer in effect, apart from some residual matters remaining for technical purposes, there is still a strong divergence of views in the province as to its nature and effect. In addition, it has been suggested that some practices introduced by the legislation will continue to operate as a result of informal administrative action. This point, too, has to be considered. 145. Bill 179 was enacted to counter rising inflation. Its effect, put generally, was to impose a fairly rigid control of wages in the public sector. This was built around a "control year" with a limit of a 5 per cent increase. This was embedded in less severe controls which could be effective as a 9 per cent ceiling. The whole exercise could affect a particular bargaining unit over a two-year period. It was suggested that the Government had failed to establish that there was in fact an economic crisis. There had been insufficient research and understanding of the problem. It was also said that wage increases would have fallen year by year without legislative interference. Both these beliefs are of course matters of opinion. The basic data is not seriously in dispute. There is a marked difference of interpretation between the trade unions who made these points and the Government. It was suggested that such divergence of view should be resolved by some independent mechanism, such as the courts. It is difficult to see the necessity in principle for such a fetter upon the exercise of the political will. There is every opportunity for the matters concerned to be tested through debate in the political forum. 146. Since the public sector was being singled out for special control, on the assumption that wages in the private sector would follow the trend set, it does seem essential that there should be ample time allowed for consultation. Failure to do this might indicate that the action was indeed precipitate and partisan. There was no complaint about lack of consultation. What was said was that the views of the trade unions had no discernible effect on the attitude and actions of the Government. That is a different matter. 147. So far, these remarks relate to the political aspects of the concern expressed. The actions do raise, however, practical and legal considerations. The most obvious is the impact the legislation had upon existing collective agreements. They were subject in many cases to amendment in particular a lesser wage increase being allowed. A lawyer can characterise such action as the expropriation of rights. 148. Such a result is difficult to avoid where a scheme of restraint is imposed which it is intended should have a speedy effect. The Government was aware of the problem and chose to apply what it regarded as "rough justice". Indeed attention was paid to attempting to mitigate some of the consequences. Most notable was some degree of protection of the first agreement, that is to say, the first agreement made after a trade union has secured bargaining rights. Such agreements often involve substantial improvements in terms and conditions. This was recognised by the leglisation and the impact of the 5 per cent delayed to allow the first agreement to operate. 149. Despite these concerns, the legislation appears to have had a greater impact on free collective bargaining than was intended or anticipated. Three aspects of this appear to be particularly important: the "chilling effect" on collective bargaining generally, damage to policies being pursued by the trade unions from bargain to bargain and the machinery for certification during the so-called "open" period. 150. Although the legislation applied only to monetary items it seems to have had an effect on matters not covered by the Act on which the parties were free to bargain. In part this was made more likely because there had been the anticipation of a switch of bargaining to non-monetary items. Some steps had been taken to prevent this being used to undermine the intended financial control. There can be little doubt that there were items adversely affected, health and safety issues spring to mind. Now the problem can be seen in the light of experience; it can be tackled should such a need arise in the future. Particular attention should be paid to the availability of the disputes resolution mechanisms so that normal relations can continue hampered only by the minimum of restrictions needed to secure the objects of the emergency measures. 151. The general objectives which the trade unions in the public sector were pursuing and which suffered setbacks are, for example, remedying low pay and seeking equality for women. Both objectives are legitimate, indeed praiseworthy. There can be no doubt that Bill 179 constituted a check to their progress. Most obvious is the use of a norm for pay increases expressed as a percentage, rather than as a flat increase. The Government accepts that this consequence occurred and points out that some steps had been taken to mitigate the result. Some of the provisions did seek to give special advantages to the lower paid: the highest were to some extent held back. Whether enough was done is in dispute. Recognition of the need to take into account such considerations when legislation is being prepared seems to be accepted. This seems to be an important point. 152. The third example of the wider effects of the legislation concerns the "closing" of the "open" period which is a feature of the Canadian industrial relations system. The legislation purported to close the open period of the control year. This was thought to deny the unions the right to gain certification. The matter was taken to the courts. Again, it is clear that the object of the provision was to secure as much industrial relations tranquility as possible during the restraint period. The question raised is whether such action was convenient and useful rather than necessary. It would need detailed knowledge of what the precise effect was during the operation of Bill 179 but prima facie the limitation appears to seek to avoid disturbance rather than secure an essential component of the limitation plan. 153. Attention was drawn to the Broadway Manor case and two comments might be useful. The decision was that the open period was not in fact closed - a distinction being made between terms and conditions which were continued and the collective agreement which did not. The decision turned of course on the precise wording of the provisions of Bill 179. In that it has narrow interest, but wider considerations arise. The case shows the importance of prior discussion of all the possible consequences of proposed legislation, that is to say, of consultation. What is decided then will be effective. On the other hand, reliance on the courts to clarify or interpret the legislation may bring changes but these will almost invariably prove ineffective since the decision is unlikely to be available during the currency of legislation which is short term. Consultation not only on the wider issues - should a provision be enacted - may merely lead to reaffirmation of the policy proposed but, on the practical consequences, what exactly is likely to happen might lead to sensible modifications being adopted. 154. One of the clearest and most important points put to us by the various trade unions was the impact the legislation has had on the regular industrial relations machinery. Various examples were given. It was felt that the employer, where his financial ability to meet trade union claims was severely limited by government fiscal policy, was unable to bargain with freedom. The scope of his flexibility might vary but his attitude was significantly altered. There were some signs of this in some of the instances put but there was too little information to enable the position in the Province of Ontario to be confidently assessed. 155. The problems the legislation and subsequent practice have posed for the important component of the system, independent arbitration, are much clearer and were put forward with much greater force. During the period when Bill 179 operated on collective bargaining, of course norms were in effect substituted for arbitration. Since then, under Bill 111, the idea of a norm, or desirable maximum increase formulated by the Government has continued. Arbitrators are given quite specific indications of the Government's view and are expected to take this into account. There are widely differing views on the effect of this practice, which appears likely to continue. It must be true that arbitrators will always have in mind the economic background in which they are operating. Many independent arbitrators are academics but few live in such ivory towers, as is commonly supposed, as not to have a clear awareness of these factors. In the unlikely chance of this being lacking, no doubt the parties will raise the issue in their statements. On the other hand, the publication to the arbitrator of a norm may have some effect. Again empirical evidence is less than clear since, alas, it is not possible to assume that when an arbitrator says he has "taken into account" such a figure, he is indicating that he has or has not been greatly influenced by it. There are ample instances of the arbitrator expressing scepticism. To balance this it appears that several arbitrators have refused to act feeling that their freedom of action was fettered. 156. The independence of arbitration is of paramount importance. It is the feature of the system in the public sector which seeks to balance the non-existence of the right to strike. That equation is one which not all those giving evidence accept as fair or proper but that question does not arise at this time. What is important is that where that system operates, arbitration must be independent. Confidence in arbitration is easily destroyed so everything must be done to ensure that doubts as to independence should be assuaged. It is not a question of testing or challenging their validity. It is essential to see whether steps can be properly taken to strengthen independence. One significant point put concerns the appointment of arbitrators. If at all possible, this should be done by a body independent of Government, a Labour Relations Board, a court and so on, depending on the particular structure. It is a matter that would require serious consideration by the provincial authorities. 157. Finally, it is necessary to note that the way in which these remarks are to be interpreted depends very much on whether inflation restraint secured by putting pressure on the public sector in particular is to continue. It has already been noted that Bill 111 does not appear to have a successor. Continuation of the policy, if at all, will be through administrative and practical measures. Experience indicates that they can play an important part in the Government's policy. If they do, since the method adopted is informal, greater care will be essential to ensure that the damage to industrial relations structures, especially the right to seek certification, to bargain collectively and to enjoy truly independent arbitration, does not occur. The trade union apprehensions appear to run ahead of what is happening - justifiably so. Awareness of these fears and discussion of the problems should help to avoid unwitting damage to the very vital safeguards built into current Ontario legislation. VI. Case of Newfoundland: No. 1260 A. Introduction 158. This case has its origin in a formal complaint submitted, on 3 February 1984, by the Canadian Labour Congress on behalf of the Newfoundland Association of Public Employees (NAPE) which belongs to the National Union of Provincial Government Employees (NUPGE), an affiliate of the CLC. The Government's observations in response to the complaint were contained in a communication of 29 May 1984. B. The issues 159. On 19 August 1983 an Act (known as Bill 59) was proclaimed the object of which was to introduce amendments to the the Public Service (Collective Bargaining) Act, 1973. According to the CLC these amendments are in violation of ILO Conventions Nos. 87, 98 and 151 in three different areas: the definition of "employee" contained in section 2(1) of the Bill, the designation of "essential" employees (section 10), and the limitation placed on strike action (sections 10(12), 23 and 24). According to the CLC Bill 59 was the latest in a series of restrictive anti-union enactments introduced to control wages in the public service and limit the possibilities for strike action. 160. The Government of Newfoundland explained that, between 1973 (when the Public Service (Collective Bargaining) Act extended bargaining rights to employees of the Provincial Government) and 1983, it had become obvious that section 10 of the Act was not effective in that almost every application before the Labour Relations Board had been found by either the Board or the courts to be defective in some respect. Section 10 clearly needed to be amended to provide for the designation of essential employees whose services were necessary for the health, safety or security of the public. In addition, unions continued to apply to the Labour Relations Board for inclusion in bargaining units of management and confidential employees and, although the Board generally rejected these efforts, it was determined that the Act should also be amended to remedy an oversight in the legislation and explicitly state the exclusions. According to the Government, no amendments had been made to the basic Act prior to Bill 59. Because of preliminary discussions with various public service unions and concerns expressed regarding three particular sections, the Act had been made subject to proclamation. The Minister of Labour had contacted each of the public service unions and had invited recommendations to be submitted to the Government regarding expressed concerns. No concrete proposals or written submissions were received by the Government and, accordingly, on 19 August 1983 the amending Act was proclaimed to come into force on 1 September 1983. (i) Exclusions from the definition of "employee" 161. The CLC maintained that the amended definition of "employee" had resulted in the exclusion of more than 2,000 government employees from membership of NAPE and prevented them from joining any other union. This group included justice department solicitors, legislative staff, middle management and consultants and could exclude a number of employees who currently had union membership with the bargaining agent that represented provincial government employees, namely NAPE. The complainant considered as particularly offensive new section 2(1)(i)(xii) which specifically prohibits people hired for programmes sponsored by Government grants and working for the provincial government from joining a union; it suspected that the provincial government would use this subsection to lay off permanent employees and hire non-union personnel to do the work of those laid off, work which had traditionally been done by members of the bargaining unit concerned. 162. In its written response to the complaint, the Government stated that the amendments to section 2 had been necessary to prevent interference by employers in trade union activities and to avoid conflicts of interest involving management staff. It pointed out that the exclusions described in section 2(l)(i)(viii), (ix), (x) and (xi) concerned high-level employees whose functions are normally considered as policy-making or managerial, or employees whose duties are of a highly confidential nature as contemplated in Article l. 2 of Convention No. 151. The Government stated that none of these employees had been members of bargaining units at the time of enactment of Bill 59, nor had the union involved ever made application for inclusion in a bargaining unit of any of these categories of employees. According to the Government, the exclusions provided for in section 2(1)(i)(xiii), (xiv) and (xv) concern persons on whom the Labour Relations Board, and not the Government, makes a determination as to the appropriateness of inclusion in a bargaining unit. These employees would be those who, in the opinion of the Board, performed management or supervisory functions, or were employed in a confidential capacity in matters relating to labour relations. In the past, in utilising these criteria the Board had taken a fairly restrictive approach to exclusions from the bargaining unit. 163. The Government stated that section 2(l)(i)(xv) allows for the exclusion of employees who, in the opinion of the Board, provide advice to the employer in relation to the development or administration of policies or programmes and that it was senior consultants who were intended to be excluded from the bargaining units under this provision. Although these employees might not be supervisors in the normal sense of the word, or have access to confidential labour relations information, according to the Government they did form an essential part of the senior management team in many government organisations and were therefore clearly inappropriate for inclusion in a bargaining unit. The Government emphasised that there had been no decisions by the Labour Relations Board interpreting this provision to date. 164. As regards section 2(l)(i)(xii) the Government stated that this was an amendment to deal with a unique situation concerning which there had been a written agreement with the union concerned, namely that of individuals receiving social assistance from the Provincial Government, with the aim of helping them to become self-sufficient by introducing them to the workforce and of qualifying them for unemployment insurance benefits. The Government explained that many of these individuals had no work experience or job skills, thus making it virtually impossible for them to obtain employment in difficult times; they were placed throughout the province with a variety of employers, many in the private sector, in order for them to learn a skill or gain some experience so that they might find a job in the future; they were not employees in the true sense of the word since they were not required to report for work, and, if they did not, they simply returned to social assistance; the Government paid their wages and employment was for a specified period of time. The Government pointed out that the union had agreed that these individuals would not be required to pay union dues and would not be covered by collective agreements. However, in May 1983, the union refused to honour its agreement, which had led to the introduction of this legislative amendment. The Government maintained that it was clearly inappropriate for normal union hiring and recall provisions to apply to this type of unique programme; if this had been the case, the programme would have been significantly impaired, if not rendered inoperable, causing hardship for many needy people. 165. The Government's final point concerning the definition of "employee" under the amended Act was that the excluded employees did enjoy freedom of association and the right to organise. Neither did Convention No. 87 nor Convention No. 98 impose an obligation on Government to grant certification rights for the purpose of collective bargaining. Excluded employees were able to organise and negotiate their conditions of employment collectively, often on an informal basis, and often on a formal basis when the Government had voluntarily recognised certain associations and bargained with them on behalf of their membership, e.g. Newfoundland and Labrador Association of Superintendents of Education and the Newfoundland Medical Association. (ii) Designation of "essential" employees 166. As regards the amendment to section 10 of the Act which defines the method of designating essential employees, the complainant cited the restrictions contained in subsections 1, 2, 3, 6, 7 and 8. Subsection 1 empowers the employer of employees in a bargaining unit to provide the provincial Labour Relations Board with a statement in writing as to the number of employees whom it considers to be essential. Under subsection 2, where no objection is made to this statement before the Board the number of employees specified shall be deemed to be the number of essential employees; where an objection is made to the written statement before the Board, under subsection 3, the Board after considering the objection and affording the bargaining agent and employer an opportunity to make representations and to be heard shall determine the number of employees who are essential. Once this process is completed the employer, under subsection 7, shall name the employees in the unit who are essential; under subsection 8 the employer has the right to substitute names. According to the complainant, subsection 1 allows the employer to make a statement at any time to the Board on the number of employees it considers essential, there being no restrictions as to the number of times that the employer can make that statement. This permits the employer to participate in strike-breaking activities because, for example, an employer could designate few employees as essential in the initial stages of a strike and designate more and more employees as essential as the strike progressed so as to make strike action pointless. In addition, the combination of subsections 2, 3 and 7 of section 10 enables employers to determine that only some employees in a classification are essential while certain other employees performing exactly the same duties need not be declared essential. 167. The complainant alleged another discriminatory element in the process of designating essential employees under Bill 59: the Labour Relations Board was now restricted from operating in an independent manner because, under section 10(3), it could not increase the number of essential employees from the figure that was contained in the employer's statement. For example, when an employer designated 49 per cent of bargaining unit members as essential, for all practical purposes strikes were outlawed, and employees were prevented from taking their case to arbitration under the Act because a majority was necessary for such action. 168. According to the complainant section 10(12) also violated the rights of public sector workers; it provides that a strike vote cannot be taken until any dispute involving the determination of essential employees is settled. Thus even the polling of a union's members to get an indication of the feelings towards strike action is prohibited. 169. The complainant stated that the most repressive feature of the amendment to the designation of essential services employees was the fact that employees who had been deemed essential lost all their rights with respect to employment - they were not covered by a collective agreement and they were not covered by the basic labour standards legislation. In addition, section 10(11) allows the employer to terminate immediately the employment of an essential employee who fails to report to work, without that employee having access to any appeals procedure. Subsection 11 reads as follows: "Where an employee named by the employer as an essential employee does not report for work as required under subsection 10, the employer shall forthwith terminate the employment of that employee, unless the employer is satisfied that there are reasonable grounds for the employee not so reporting". 170. In its written observations on the question of essential employees, the Government stated that the 1973 Act did not take away the right to strike from any particular group of employees, but only from those individuals in any given bargaining unit which the Labour Relations Board might determine were necessary for the health, safety or security of the public. The Government stated that the 1973 version of section 10 had not achieved its purpose since the unions effectively thwarted the Government's applications to the Board for a determination of essential employees. At first, few strikes had taken place in areas affecting the health, safety or security of the public and those that had taken place were of relatively short duration; emergency services could be provided by management employees and, in some cases, the unions had allowed some bargaining unit members to work in emergency situations. The situation changed, however, in 1981 when the laboratory and X-ray employees took strike action. According to the Government, the union provided emergency services but not essential services, emergency services being provided only in cases where there was an immediate threat to life. Management employees were able to provide additional services so that for a period of time hospitals had been able to cope. The strike continued beyond a month's duration and difficulties arose, forcing the Government to act by introducing Bill 111 which provided for the designation of approximately one-third of the bargaining unit to provide essential services. This Act had been repealed with effect from the date of signing a new collective agreement to cover laboratory and X-ray employees and, in any case, on the date of the enactment of Bill 111, the union had called off the strike. Following the conclusion of this difficult situation, the Government had decided that the 1973 Act would have to be amended to provide a workable method of designating essential employees by an independent tribunal prior to a strike. Therefore Bill 59 introduced new essential employee provisions; employees could strike but essential services would have to be maintained. The Government explained that, under the amendment, the Labour Relations Board determined the number of employees in any particular classification that was required to provide essential services. This determination was based on the submission from the employer and provided for intervention by the bargaining agent. After the union and the employer had agreed, or the Board had determined the number of employees, the employer named the individuals and might substitute those names. This was necessary, stated the Government, so that the employer might choose employees who could do the required work since employees in the same classification might be somewhat specialised, e.g. critical-care staff or general day nurses. It also allowed the employer to substitute names of employees who had resigned, retired or taken leave of absence. 171. Regarding the allegation that the Labour Relations Board was now prohibited from operating independently, since it could not increase the number of essential employees contained in the employer's statement, the Government stated that it or the employer, and not the Labour Relations Board, had to determine the level of service which had to be provided to ensure that the health, safety or security of the public was not jeopardised. It claimed that there would be a dereliction of public duty if the employer were to seek a lower number of employees than reasonably necessary to perform the required level of service. It pointed out that where the number of employees deemed essential exceeded 50 per cent, the bargaining unit had the right to advise the employer and the Board that every employee would be deemed essential, and thus the right to compulsory binding arbitration was available to the bargaining agent pursuant to section 29 of the Act. 172. The Government stated that, under section 10(12), strikes and strike votes which led to strikes were not permitted until the number - not the names - of essential employees had been agreed between the parties or determined by the Board. The employer could not delay the determination of the number of essential employees unilaterally since section 10(1) allowed the union to request the Labour Relations Board to order the employer to make the necessary submissions. The Government emphasised that section 10(12) did not prohibit the union in any way from polling its members to ascertain their feelings towards job action; it merely provided that a strike vote leading to a strike pursuant to section 23 could not be taken prior to a determination of essential employees. According to the Government, this was similar to a provision which stated that a strike vote could not be taken until conciliation proceedings have been completed. 173. The Government maintained that employees who were named essential and reported to work did not lose all their rights with respect to employment. Section 10(10) provided that they must report to work as if a strike were not taking place, which meant that the provisions of the expired collective agreement continued to govern essential employees. The essential employees who worked through a strike were automatically entitled to all benefits that the striking employees were able to obtain upon settlement of the strike. In addition, the Government repeated that, if more than 50 per cent of the employees in a bargaining unit were deemed essential, all employees had the right to binding arbitration. As regards the allegation that because of the designation of essential employees, strike action would prove a useless tool, the Government stated that this was a premature statement in view of the fact that no orders had yet been issued by the Board. The Government also pointed out that an essential employee who failed to report to work without reasonable grounds was subject to termination, but since the expired collective agreement continued to govern essential employees who were not on strike, the grievance provisions likewise remained in effect. Employees were always subject to dismissal for just cause and the legislation merely stated that failure to report to work without a valid excuse would be just cause. The employer's action and the employee's reasonable grounds would continue to be subject to the scrutiny of arbitrators and the courts. (iii) Limitations on strike action 174. The third amendment introduced by Bill 59 which was the subject of the complaint concerned section 23, which now provided that employees who opt for strike action are required by law to give 38 days' (one month plus seven days) notice before they are legally able to strike. In addition, section 24 of the Act had been amended so that workers in health care institutions did not have the right to strike on a rotating basis. According to the complainant, sections 23 and 24 as they now read served no other purpose than to limit union members in their freedom to express themselves, as well as the right to strike to a particular means of striking. It pointed out that the employer, when drafting the legislation, had decided to attack solely the union since the legislation did not provide for any reciprocal provisions concerning the employer, such as lock-out. 175. Concerning the limitation on strike action, the Government pointed out that, under the 1973 Act, a seven-day notice prior to taking strike action was required. This provision had not been altered except that where strike action did not commence on the notified date, a one-month's delay was required before another notice was permitted. The Government explained that this provision had been included to prevent a union from closing an institution, such as a hospital, without actually going on strike. When a hospital was notified that a strike was to take place, operations had to be significantly curtailed and the hospital was geared down to providing only essential services whether or not the employees actually withdrew their services. The new provision required that the employees give the institution an opportunity to return to operational status for a reasonable period of time if they did not strike on the date originally intended. 176. Regarding rotating strikes, the Government stated that such action in health service institutions had been prohibited so as to avoid a situation where persons were admitted to hospital and scheduled for surgery and, with no further notice, employees of that hospital went on strike. Rotating strikes in health service institutions created life-threatening situations and, stated the Government, were completely unacceptable. It pointed out, however, that these two provisions covering the timing and nature of strike action had no effect on the right to strike or the effectiveness of job action once taken, but were reasonable limitations taken only in the interests of protecting the health and safety of the public and did not amount to an infringement of freedom of association. The Government considered that the allegation that the amendment did not include an accompanying prohibition on rotating lock-outs is difficult to understand since such action would never benefit health service institutions. 177. In conclusion, the Government stated that the amendments under examination had been made to protect the health, safety and security of the public and not intended to discriminate or interfere in lawful union activities. It pointed out that the Committee on Freedom of Association had recognised that exclusion from trade unions and the collective bargaining process of public servants occupying managerial or supervisory positions of trust was justified. The Government maintained that the amendment to section 2(1) had excluded such employees from a bargaining unit but left them free to join associations to protect their occupational interests; such associations had been recognised by the Government and bargaining had taken place with them. As regards the other specific exclusions listed in section 2(1)(i)(viii) to (xii) the Government stated that it had no control over such exclusions since applications had to be made to the Labour Relations Board which made decisions based on established precedent and labour law principles relevant to exclusions from the bargaining unit. It pointed out that, over the past several years, most inclusions/exclusions in government departments had been settled by agreement between the union concerned and the employer with only a very few disputed positions being taken to the Labour Relations Board for a determination. As regards the allegation that the new method of designating essential employees discriminated against union activists, the Government stated that there had been no interference in union organisation and no instances of an employee having to join or relinquish membership in a trade union. According to the Government it was in the employer's interest to have employees who would perform essential services and it was employer policy not to designate union executives and officials unless they were the only individuals in the classification who were able to perform the required work. It reiterated that the amendments to the legislation concerning the timing or nature of strike action were not unnecessary interferences in the union's activities or programmes, but merely laid down preconditions to the implementation of a strike. It stated that the union was free to poll its members and conduct ballots to determine the feeling of the membership towards job action and that only the formal strike vote which culminated in a strike might not be taken until essential employees had been designated. C. Information obtained during the mission 178. I had extensive discussions on the issues raised in this case with both the NAPE and the provincial government representatives, headed by the Assistant Deputy Minister, on the spot in St. John's, Newfoundland and in Ottawa where CLC and NUPGE representatives also spoke to me about Bill 59. Once again, the oral submissions of the parties were supplemented by extensive written submissions, handed to me in St. John's. 179. The first point that emerged during these discussions was that the healthy industrial relations climate which had reigned in the Province since the 1950s had fallen to an adversarial one. According to the union, partly due to the recession, partly in over-reaction to an increasing radicalism in certain civil service unions, and perhaps partly due to an aversion on both sides to seek interest arbitration, the Government interferred in the collective bargaining process with Bill 59. NAPE's view was that, prior to Bill 59, responsibility for the decline in labour relations lay as much with the unions because of their radicalism as with the Goverment because of its paternalistic approach. The unions, however, could not be blamed for the "panic" of the Government in enacting Bill 59 which was utterly pro-employer in character and which would only lead to a further deterioration in labour relations. The background to the introduction of the legislation in Parliament evidences the misunderstanding between the parties at present, a point which will be referred to further on in this report. (a) Consultations 180. The union stressed during our discussions that it had, in effect, only been given one day's notice when the draft legislation was tabled. There were no public hearings on the proposed amendments and NAPE had been under the impression that Bill 59 as a whole was subject to proclamation whereas only the three disputed areas (definition of employee, designation of essential employees and the strike provisions) were held in abeyance and gazetted at a later date. NAPE claimed that Bill 59 had eroded any previous trust that existed beween the parties and caused a situation of confrontation. According to the union, the reason for the introduction of this legislation had been clearly a growing contempt by the Government for the unions and their increasing strength as well as a lack of respect for the unions' ability to represent the interests of their members. The situation prior to Bill 59 had been satisfactory with 294 contracts having been concluded. The arbitration system and the selection of arbitrators from a panel established by the Labour Management Co-operation Committee had also been satisfactory. 181. The Government, on the other hand, explained that copies of the draft amendments had been given to the union very shortly before they were tabled in Parliament. The difficulties with the basic collective bargaining Act and with section 10 in particular had been discussed with NAPE representatives on many occasions in the past. The Government delayed proclamation of the disputed parts of Bill 59 and informed the union that it wanted to receive its suggestions on them. However, according to the Government, no written submissions were received; only a general tape-recorded description of the problems was handed in to the Ministry of Labour. This the Government took to be a lack of interest in face-to-face discussion. The provisions were then proclaimed and came into force on 1 September 1983. The Government could not explain why the union backed off at this juncture although it recognised that it may had been due to the breakdown in the informal, co-operative relations which the union had had with the Government as employer in the past. (b) The definition of employee 182. According to NAPE, in the amendment of section 2(1) in Bill 59 the Government had effectively excluded up to 2,000 workers from union membership which some had previously enjoyed. NAPE was concerned with the exclusion from the definition of employee of persons employed in an employment opportunity programme administered by the provincial Government with its own and/or federal monies (section 2(1)(i)(xii)). The union pointed out that this exclusion from coverage of the Act does not apply to similar programmes administered by other levels of government such as school boards and municipalities. It claimed that the aim of such programmes was not to train the unemployed to enter the workforce, but to transfer them from the provincial payroll to the federal payroll. Since such persons could not join a union, it was more difficult to negotiate increases in union members' benefits, and the union felt threatened by this source of scab labour should strikes occur and the possible reduction in working time of union members. NAPE was particularly suspicious of this provision given that it has made many agreements with employers not covered by the Act (municipalities, the College of Fisheries, private hospitals) allowing employment opportunity programmes in workplaces where it represents workers. From copies of such agreements handed to me, it appeared that NAPE's only precondition for accepting non-union workers in such workplaces was the protection of the job security and benefits of its members. The union's other concern with this provision - that it denied these persons the right to join a union - was not related to an earlier agreement NAPE had had with the Government concerning non-unionisation; that agreement had only concerned persons on welfare. According to NAPE, when the Government started using these people in programmes, that understanding fell. Given that the union was prepared to represent these people on matters not connected to their rates of pay which were set under the scheme, more or less in line with the minimum wage, and would not expect them to pay dues, it felt that the Government ought to have negotiated their situation with NAPE instead of legislating them out of coverage under the Act. 183. The Government pointed out that the employment opportunity programmes were designed to enable unemployed persons to accrue the 20 weeks' workforce experience required for entitlement to federal unemployment benefits. When NAPE's position on coverage of such persons for non-collective bargaining items was put to the Government, there appeared to be further misunderstanding: the Government stated that, in 1984-85, about 600 people had been involved in the programmes and therefore not entitled to collective bargaining, whereas the union had claimed that 2,000 had been without collective agreements. Given the temporary employment of people in these unique programmes, the Government found it hard to understand why the union would be interested in recruiting these people for membership per se but did not express opposition to this possibility. 184. As regards the exclusion contained in section 2(1)(i)(xv) (persons providing advice to the employer in relation to policies or programmes), NAPE explained that the past practice of negotiations and Labour Relations Board decisions had worked well when disputes - which were quite rare - over this type of employee arose. It feared that this amendment could be stretched to include such persons as social workers or consultants. It pointed out that the Labour Relations Board has refused to grant exemptions for the present until judicial challenges to Bill 59 as a whole are completed. The Government considered that it had only put into legislative form the criteria of the Board's past practice, namely the exclusion of managerial, confidential and policy-making employees. It pointed out that this was an exclusion specifically recognised in Article 1 of Convention No. 151. I pointed out that the union's suspicion might have been the result of a lack of communication as to the intent of this provision. 185. During these discussions on section 2(1), the Government also emphasised that there was no hidden motive behind subsection (ix) - which excludes solicitors and legislative counsel from the Act - and pointed out that they do form associations and bargain collectively with the employer. (c) Questions concerning the right to strike 186. Section 2 of the Amendment Act of 1983 (Bill 59) repealed section 10 of the Public Service (Collective Bargaining) Act of 1973 which related to the designation of essential employees, that is to say "employees whose duties consist in whole or in part of duties the performance of which, at any particular time or during any specified period of time, is or may be necessary for the health, safety or security of the public". While the definition of essential employees remained the same after the 1983 amendment, a number of issues arose from the further amendments introduced by Bill 59 to the Act of 1973. 187. NAPE claimed that public-sector unions had always provided essential services to protect the health, safety and security of the public. It was NAPE's belief, however, that the legislation was being used to give the employer, the Government and the Newfoundland Hospital Association, an advantage in collective bargaining. NAPE representatives insisted that they were fully conscious of the need to provide essential services during labour disputes. Bill 59, however, empowered the Labour Relations Board to be final arbitrator with respect to essential services. The Board would always err on the side of caution in its decisions on essential services, thus favouring the employer. It was NAPE's contention that the Board would not appoint more essential employees than the number requested by the Government. The result was the prevention of more than half of any bargaining unit being designated as essential, thereby preventing in turn a resolution of a dispute by arbitration; it was obviously the Government's intention to eliminate the right to strike, but also to prevent disputes from being resolved through arbitration. 188. NAPE argued that it was difficult for the union to agree on the determination of essential employees since the employer refused to give it information on the total number of workers in bargaining units and their job classifications. 189. According to NAPE, the workers in liquor stores who had previously been considered essential, had had their right to strike restored, whereas the status of hospital food service workers had not changed, their right to strike always having remained intact. It was an anomalous situation when health inspectors employed by the provincial Government were considered essential but workers not working for the province but who prepared food for a number of hospitals were not. 190. The Government, according to NAPE, had always been unwilling to settle questions of essential employees through negotiation or by following alternative disputes settlement procedures. This question was one which had been going on for years and the courts and the Labour Relations Board had decided that the Government's approach had been impractical. 191. If, for example, through negotiations or by decision of the Labour Relations Board, 33 per cent of hospital support staff were declared essential, this would mean that out of a bargaining unit of 800, 265 would remain at work. To this latter figure would be added management and non-bargaining unit workers and workers of other bargaining units. In other words, a major hospital, during a strike, could have more workers available than during the peak annual leave period. It was, in addition, the practice in Newfoundland to recruit other workers to replace striking workers. Hospital support staff had, therefore, lost their collective bargaining rights through this procedure which, in addition, denied them any other disputes settlement machinery. 192. Under Bill 59, employers could select essential employees as they wished or otherwise manipulate strikes by making it difficult to deal with a dispute if a large minority of workers were deemed essential and received full pay and benefits while those on strike had their regular income interrupted. 193. Another aspect of the matter was the ability, according to NAPE, of the employer to have a small percentage of the bargaining unit declared essential and to return periodically to the Board for further increases in that percentage. Such a practice would have the effect of destroying strikes. 194. NAPE agreed that the legislation had never been used by the employer in this manner but claimed, nevertheless, that these advantages written into the legislation had a prejudicial effect on the morale of the workers and on the collective bargaining process. The belief, shared by NAPE and by the Government, is that there must be levels below which public services should not be reduced, should not be used, either by unions or by government, to gain advantages in collective bargaining. 195. In NAPE's view, the question of essential services should be decided through negotiation between the Government and the union, or decided by an expert third party. No one should gain any advantage and essential services should be shared equally amongst the qualified members of the bargaining unit. Since the question of essential services destroys the right to strike, any bargaining unit in which the question arises must have an alternative disputes settlement procedure at its disposal. 196. NAPE also questioned the need of sections 27-29 of the Act which provide for a declaration of a state of emergency during a strike where such a strike would be injurious to the health or safety of persons, or a group or class of persons, or the security of the province. 197. The union referred to one case concerning a strike in 1981, of laboratory technologists, X-ray technologists, technicians, etc. following the failure of the Government to accept the report of a conciliation board. Although a strike was declared, the union set up an essential employees system and provided specialist skills, on a permanent basis. A renewed offer by the employer was refused by the union. The Government introduced legislation (Bill 111) declaring up to half the bargaining unit as essential, thus putting an end to the strike. In the view of NAPE, the Government could have referred the issues in dispute to arbitration or returned to the negotiating table. Instead, by introducing legislation, it destroyed collective bargaining for the unit concerned. The union thereafter signed a collective agreement and Bill 111 came to an end. 198. NAPE also argued that section 2(12) of Bill 59 denied union members the right to vote to take strike action. If the employer made an offer, the only vote that could be taken would be one to accept it, otherwise it would be illegal. The designation of essential employees should follow - and not precede - a decision to strike. 199. Another problem was that posed by section 23 of the Act, as amended by section 6 of Bill 59. Under the previous legislation of 1973, bargaining units were required to give seven days' notice of any strike. Under Bill 59, if the union did not go on strike on the date specified in the notice, 30 days had to elapse before a further notice of seven days could be given. Again, in the view of the union, this was an attempt to control collective bargaining to the advantage of the employer. 200. Section 24 of the 1973 Act was also amended by Bill 59 to prevent rotating strikes which, in NAPE's view, should not be banned. Here again, this prohibition gave the employer great influence on the union's negotiating strategy. In addition, rotating strikes would ensure that only a portion of the hospitals in the province would be on strike at any given time. 201. In its submissions on the question of strikes, the Government explained that the 1973 Act granted this right to all workers covered by it, i.e. civil servants, hospital employees and vocational school instructors, with the exception of those who might be designated as essential. Prior to Bill 59, the employer, at the time of certification of the union, made an application to the Labour Relations Board for designation of a list of named employees. Almost every such application had been contested by the union and in some way found wanting by the courts which themselves said that the Act required substantial modification on this question. Even on one occasion, when the Board had appointed a panel of experts to designate, the court had found that this panel did not have jurisdiction to do so. 202. This unsatisfactory situation lasted for almost ten years and it was only after the strike, in 1981, of laboratory and X-ray workers during which a threat was made to call out even essential services, that amendments were introduced in Bill 59. As regards the 1981 strike, the Government added that arbitration was not provided for in the legislation nor, from an economic point of view, did the Government consider it appropriate to refer the issues to arbitration. Although the conciliation results had been rejected by the Government, it was often the union that rejected such results. In any event, the emergency legislation was enacted since there was an urgent and grave risk to the health of patients. 203. The 1973 Act had, accordingly, proved to be unworkable as regards essential services and Bill 59 had introduced amendments which were procedural rather than substantial. Instead of asking the Board to designate named employees, a number was requested. The employer could apply to the Board at any time and not, as before, only at the time of certification, most unions being in any event voluntarily recognised. According to the Government, the union's claim that the employer might make successive requests to the Board in order to increase the number and thus break a strike was a misunderstanding on its part. Not only was it not the employer's intention to do this but it was also practically impossible since there were major difficulties in convening the Board at short notice. 204. According to the Government, there had been meetings with NAPE concerning these problems but in spite of all the explanations given to them, the misunderstanding remained. No such problems, however, existed between the employer and other bargaining units, e.g. the Canadian Union of Public Employees, on these matters. Agreements as to the designation of essential employees had been reached with other unions, but NAPE who had knowledge of the employer's current proposals, had requested the Board not to proceed with hearings on them. The Government supplied the mission with detailed information on the recommendations it had made to the Board as to the percentage of essential employees that might be fixed by the Board. Since 1983, however, NAPE had steadfastly refused to participate in the process of negotiating essential employee requirements. 205. It was important to emphasise, continued the Government, that in June 1985, section 10 of the Act was amended and a significant number of Government employees in nine specific bargaining units were excluded from the designation of essential requirement. Other government agencies or boards had identified a minimal or no essentials requirement and, in the overall government sector, it had been determined that 21 per cent (17.7 per cent including section 10 units) of the employees were essential. This group included 100 per cent of prison warders (who now had automatic access to arbitration) and others such as forest-fire suppression crews, social workers, etc. The requirement in the health-care sector was greater (33 per cent) to ensure a minimum standard of care for the sick and the aged. 206. The Govermment pointed out that five years ago the union would not have been prepared to accept arbitration as an alternative to its right to strike. Now it was the Government which, in the present economic situation, was reluctant to seek arbitration. Bill 59, the Government insisted, resulted from court decisions and was precipitated by the 1981 strike. Now, the Government pointed out, the rules were set and well known and this was preferable to the adoption - as was the case in 1981 - of emergency legislation in the event of a strike in an essential service. There had been no strikes in the hospital sector since 1981. 207. As regards sections 23 and 24 of the Act, as amended by Bill 59, the amendments introduced in June 1985 had repealed section 23 but had maintained the seven-day notice period in respect of hospitals and health-care institutions. If workers in these sectors did not go on strike on the date specified in the notice, a further 30 days had to elapse before another notice was given. The reason for this was to deal with the problem of sending patients home and bringing them back to hospital if the strike did not occur. The system did not exclude eleventh-hour bargaining and, in the view of the Government, there was no reason why there could not be an agreement between the parties to extend by one day the seven-day notice period if a new offer was made. 208. Concerning rotating strikes, the Government explained that Bill 59 had amended section 24 of the Act to prohibit such strikes in health service institutions only. The Act concerned the bargaining unit only, and while part of that unit could be called out on strike, there could be no question of that part striking on a rotating basis. This provision had been introduced to avoid the kind of problem that had been experienced during the 1981 strike of laboratory and X-ray workers. D. Concluding remarks 209. Public servants represented by NAPE basically retain the right to strike. The counter-inflation measures overrode the bargaining system which remained intact for use once the special legislation had run its course. The complaint, therefore, relates to limitations which appear to have recently been introduced into the usual process of bargaining. 210. The first point raised, and it is a very important one, was that the measures in Bill 59 were never the subject of proper consultation. It is obvious to an outsider coming to Newfoundland that, although industrial relations in the public sector are not without their share of problems and some strife, there has been a good relationship between the trade union and government. This did not prevent disharmony on Bill 59. It is difficult to describe accurately the extent of consultation on Bill 59 since perceptions differed. Such contact as there was took place in an atmoshpere where the Government, having recently reviewed industrial relations was determined to seek revision built on experience. Whilst the trade union viewed the changes as a threat to its position, indeed it felt that the position had not been adequately assessed and felt threatened by the provisions of the Bill, some of which it found far from clear. It appeared to NAPE that a series of incidents over the previous few years had led to a somewhat extreme reaction which did not reflect what was really to be anticipated. The underlying confusion and suspicion were clear. 211. The Act has been in place now for some two years. Misunderstandings and hesitancies still exist. It has to be noted that very recently some important modifications have been made by an amendment Act of June 1985. This serves to underline the need for a resumption of co-operative consultations. It is still possible to detect divergent views on the meaning and intent of various provisions of Bill 59: several practical difficulties can be foreseen and both sides are looking predominantly at the possiblity of extreme reactions from the other. This is surely fruitful ground for consultation and it would seem that there is scope for jointly clarifying, tidying up and more closely defining the rules and, in the process, re-establishing a better working relationship. 212. One of the most serious points put by the union relates to the limitation on collective bargaining by amendments to the definition of employee. This has two components. Section 1(b)(xii) excludes from the crucial definition of employee, those employed in an opportunity employment programme. There was some confusion between the accounts given as to the exact coverage of this subsection. What is clear is that it excludes workers offered opportunity placements from bargaining units. This is understandable since the principal terms and conditions are governed by the terms of the scheme. However two worries remain. The trade union seeks the right to be consulted on such workers who are used in work within or connected with the bargaining unit. There also appears to be no reason why such workers could not be admitted as members with limited or notional dues so that residual services other than bargaining could be provided. The second provision to which objection is raised in that of advisers to the Government in the development or administration of policies or programmes to be determined by the Labour Relations Board. This subsection, it was agreed, enshrined what had been the practice. It is illustrative of the lack of understanding that both agree on this, yet the trade union has a suspicion that some change was intended. Only an open dialogue can remove such apparent misunderstandings. 213. Most complicated and central to the complaint are the changes made by Bill 59 to the concept of essential employee. The bargaining units concerned include for example, hospitals and air traffic controllers. Although there have been few strikes the Government has sought in the Bill to give added protection to essential services. The trade union in almost all cases has offered "emergency personnel". There is a discrepancy in thinking as to what this should cover which is epitomised by the use of different words - "emergency" and "essential". The process of designating a proportion of each bargaining unit as essential has ground to a halt. The figures suggested by the Government have been made knowing the Labour Relations Board has power of decision. Two difficulties arise. The trade union challenges some of the numbers which, it appears, have been selected with a liberal eye. It fears the Labour Relations Board will be unable to look at such an issue with rigour since the decision, possibly affecting safety and health is an onerous one. That should not be too difficult to resolve. 214. Of much greater concern is the effect designation is likely to have on strikes and it should be remembered that the right to strike is an important feature of the relationships being considered. If more than 50 per cent of a unit are designated as essential then the right to strike is replaced by independent binding arbitration. Neither the Government nor the trade union has a great liking for this mechanism. None the less it is clear that if a substantial proportion of the workers are designated as essential then it becomes more attractive to the trade union than a weak strike. As with so much in the complaint the issue cries out for study and compromise. Unless some relaxation in the rules is made, those sectors where say 33-50 per cent are designated will fall between the two systems and trade unions rights will be restricted unacceptably. The relationship between designation of essential workers and the strike vote is a further point raised. Again there is a different view of how the system will work in practice. There appears to be a chance that designation of a proportion outside the context of a strike, i.e. as a normal procedure, and of individuals after the strike vote might go some way to alleviating the problem. 215. Two strike tactics have been dealt with by Bill 59. Both have arisen from isolated examples in the past and the provisions again appear to have a degree of ambiguity. The prohibition of a strike where the stated date has passed, for a period of 30 days, and fresh notice could be used to delay a strike by last-minute bargaining. There is no evidence that that is intended, and a simple amendment, or even letter of intent, should remove the genuinely held fear. The provision against so-called rotating strikes does appear to interfere with the trade union's power to determine how it shall conduct a strike in the tactical sense. Again the provision gives rise to a justified fear but unless it is misused cannot be said to be a serious fetter on action. 216. It will be obvious that the Government has looked at past practice and has decided to prevent practices which were felt to be abuses of trade union power that caused potentially difficult management problems in key public sector areas. This has led to a strong reaction and even stronger suspicion. The trade union has suggested, for example, that provisions which appear at first sight to be enshrining useful and common practice (such as section 18 allowing the Minister power to defer the statutory process to introduce a conciliator or mediator) are devices that can be used to defer or delay. There can be no clearer example of the need to clarify attitudes and intentions. A relatively small number of agreements or statements of intent on both sides would ensure that the possible use of the legislation to damage or hamper the proper use of trade union power would be accepted as not being the intention of the legislation. 217. The Committee on Freedom of Association will appreciate that the purpose behind the legislation has been left unclear since it can be used in several instances with differing results. One interpretation would seriously limit the right to strike effectively using normal criteria. If this is to be a possibility the underlying basis of the system could be in jeoparady. It has to be remembered that the usual formula in the public sector is that if the right to strike is withdrawn, the alternative protection in these special cases is access to independent binding arbitration. Where the right to strike exists but is seriously fettered or put in jeoparady, then the workers concerned lack effective protection. 218. It is important that the exact meaning and possible uses of the provisions of Bill 59 are clarified. This will undoubtedly lead to some adjustments - it was pleasing to hear that the 1985 Bill has already started that process, albeit unilaterally. Once this process is complete it will be necessary to see whether the right to strike, with reasonable limitations to protect the health, welfare and safety of the people, exists. Where it does not, alternative protection will be required. VII. Final remarks 219. Three of the complaints arise as a reaction to recently enacted legislation in Alberta (Case No. 1247) - Bill 44, in Ontario (Case No. 1172) - Bill 179 and in Newfoundland (Case No. 1260) - Bill 59. The fourth, Alberta (Case No. 1234), is a much narrower point. Although the industrial relations system varies from province to province, in some respects markedly so, and although the three pieces of legislation take differing approaches, there is a strong underlying similarity of policy and aims. It seems appropriate therefore in these concluding remarks to draw the Committee on Freedom of Association's attention to the underlying currents. 220. All three statutes were enacted as a result of the Government's need to combat inflation. All three applied to the public sector, that is to say, direct employees of the Government and others employed by independent bodies largely dependent upon government funding. This special attention had two prime causes. The Government itself was the employer or had a strong influence over the employer and it was felt that control of the public sector was both necessary and would set the level for the private sector. Most of the queries raised on this belong to the economic debate. What concerned the trade unions and must concern the Committee is the damage such legislation has done to industrial relations, in particular of course, in breach of the principles set out in the ILO freedom of association Conventions (i.e. Conventions Nos. 87, 98 and 151). 221. Several major features merit attention. The Canadian industrial relations system has a structure that at first sight mirrors that developed in the United States. That is to say it is fairly closely regulated by legislation. However there is also a strong tradition of informal contacts which have enabled the parties to reach voluntary agreements and to determine a not insignificant part of the relationship. It has been suggested that this consultative process has been damaged. Certainly the use of legislation has given that impression. One major problem is that the Government, when it is using legislation in the public sector is at the same time carrying out two functions. It is the democratic government acting to protect the economy but it is also the employer, altering the balance of its relationship with the trade union. This gives ample opportunity for confusion, misunderstanding and a serious breakdown in internal relationships. It is easy to overestimate this since normal relationships tend to carry on in many spheres, but the fear and suspicion were apparent in all three provinces. Ironically it can be said that the greatest need is the re-establishment of normal industrial relations processes - consultation, conciliation and mutual understanding. 1. Inflation control 222. Whereas inflation control is an important task of government, a distinction has to be made between short-term measures aimed at bringing a situation under control, and a more permanent structure. Action is taken under the first head because a particular problem overshadows the system. This was the position in Alberta where the economic decline was sudden and serious. It applied with somewhat less force to Ontario and Newfoundland although the economic problems in those provinces were clear. The legislation in Ontario had already lapsed. In all three provinces, however, it is the lasting effects of the legislation, or in the case of Ontario of practices springing from the period of legislation, which have to be measured. 223. In each case there has no doubt been some lasting effect. This involves either changes in the structure of collective bargaining or influences on the independent dispute resolution machinery which is the predominant safeguard in Alberta and Ontario and plays a small part in Newfoundland. It is an assessment of this damage which is crucial to these cases. 2. Consultation 224. Although the Canadian system of industrial relations operates legally regulated bargaining procedures the importance of consultation remains. This is particularly so where a government introduces proposed legislation to amend the rules governing that system and to change the relative position of the parties to the bargaining. It has already been remarked that such consultation is doubly important where the Government seeks to alter bargaining structures in which it acts actually or indirectly as employer. Time available for consultation must be adequate. Obviously it may be limited by the urgency of action in face of economic problems. Its effectiveness can be reduced by the attitude taken by the trade unions concerned. But it is a truism that proposals should be openly discussed, clarified and doubts, fears and misunderstandings resolved before legislation takes its final form. Otherwise suspicion grows and attention is diverted to lengthy and often untimely challenges in the courts. 225. In Alberta the Government took the view that the rapid fall in economic prosperity called for urgent action. Consultation appears to have been limited to a formal presentation of views to the legislature. In Ontario there appears to have been ample opportunity for consultation which does not seem to have been used constructively. In Newfoundland there has been a long-established and strong commitment to consultation which had been a valued feature of the relationship. Unfortunately although there was some consultation the usual relationship appears to have broken down at least temporarily. 3. Public servants - bargaining and the right to strike 226. In most Canadian provinces, but not Newfoundland, the right to strike is withheld and access to independent binding arbitration takes its place. This only occurs in very limited circumstances in Newfoundland. To ensure the integrity of the system it is essential that the bargaining procedures are unfettered and that there is truly independent machinery to settle disputes of interest that are not agreed in bargaining. Most of the details of the complaints, from all four cases, relate to one or other aspect of this crucial balance. If the balance is seriously destroyed, leaving aside short-term economic intervention in time of emergency, then the ILO principles on freedom of association are called into question. (a) Collective bargaining 227. It is not necessary to draw the Committee's attention to every complaint made of provisions that were felt to destroy the fair balance of collective bargaining. Equally it is only necessary to underline the common view of governments that it has become important in times of economic stringency to introduce into public sector bargaining factors which correspond to the gloomy information a private employer is able to bring to the bargaining table by way of declining profits and slim order books. 228. Several examples will suffice. In Alberta a considerable number of changes to the machinery of bargaining have been promulgated. In Newfoundland significant limitations in the bargaining units and in the participation of members of those units in strikes have been enacted. It is not an easy task to assess the extent of the damage but trade unions point to flexible provisions which give rise to fear of loss of effectiveness. (b) Independent dispute resolution 229. This aspect is vital to a proper system. All the provinces have a Labour Relations Board that acts as an independent regulator and decision maker within the system. Although some suspicions of bias were mentioned there is not a great deal of evidence to substantiate this. Of more concern is the position of binding arbitration. Disliked at times by both sides, it remains the crucial keystone to the alternative pattern of no strikes - independent dispute resolution. 230. Arbitrators have a notoriously short professional life, and their decisions often give one side the view, almost invariably erroneous, that the arbitrator lacks independence. There is no doubt that in times of economic stringency the pressures increase. Governments resent a system which passes control of financial decisions to a third party. They naturally tend to attempt to influence the arbitrator. Asking that the economic background be taken into account seems inevitable and sensible. Insisting on conformity to a norm destroys independence. In practice the pressure tends to lie between these extremes. It is essential that care be taken to protect independent arbitration: both the mode of their appointment and their tenure must be carefully regulated. The system inevitably, however reluctant the parties may be, insists that arbitrators be trusted to act fairly and sensibly. 231. Finally it has to be stressed that a large number of the grounds on which these complaints have been raised could be settled, not easily it is true, by agreement between the governments and the trade unions. Until they are, the tendency will be to use legislation, powers and practices which damage the essential balance enshrined in ILO Conventions. How far that has occurred is not a matter for me: the detailed information above is intended as material on which the Committee on Freedom of Association reach its decisions. * * * 232. In concluding this report, I wish to express my sincere appreciation to the Government of Canada and to those of the Provinces of Alberta, Ontario and Newfoundland for the efficient and courteous manner in which my mission was received and for the genuine spirit of co-operation in which the discussions with the representatives of the various governments took place. I also wish to thank the Canadian Labour Congress, the National Union of Provincial Government Employees, the Canadian Teachers' Federation and all the provincial unions of public employees whose representatives were of the greatest assistance to me throughout the mission. A special word of thanks is due to Ms. Lucille Caron, of the Federal Ministry of Labour, Mr. Brian Mallon of the Canadian Labour Congress and Mr. Derek Fudge of the National Union of Provincial Government Employees, who accompanied me at various stages of the mission and whose valuable assistance regarding practical arrangements was much appreciated. Thanks is also due to Mr. John R.W. Whitehouse, Director of the ILO Office in Ottawa who, along with his efficient staff, facilitated practical arrangements. Finally, I must express my deep indebtedness to Mr. W.R. Simpson, Chief of the Freedom of Association Branch of the ILO and Mrs. Jane Hodges also of that Branch, who accompanied me during my mission to Canada. Their mastery of ILO principles, deep understanding of industrial relations, combined with their ability to work at speed, were essential to the completion of my mission and this report. John Wood, LLM, CBE. ANNEX Meetings in Ottawa (12-13 September 1985) Mr. M. Dorais, Director-General, Policy and Liaison, Department of Labour of Canada together with Mrs. L. Caron, Mr. B. de Laat, Mr. A. Torobin, Mr. P. Sorokan, Ms. C. Racine, Mrs. J. Godon, Mr. J. Lynch, Mr. P. Hewson and Mr. Beaupré Bérard of the Federal Ministry; from the Alberta Ministry of Labour and Education Department, respectively: Mr. A. Kennedy (Assistant Deputy Minister of Labour) and Ms. C. Mead; from the Ontario Ministry of Labor and Treasury, respectively: Ms. M. Kenny and Ms. J. Bass; from the Newfoundland Ministry of Labour, Treasury Board and Department of Justice, respectively: Mr. H. Noseworthy, Mr. L. Powell and Ms. D. Fry. From the Union side, Ms. S. Carr, Secretary-Treasurer of the Canadian Labor Congress (CLC), Mr. J. Fryer, President of the National Union of Provincial Government Employees (NUPGE) and representatives of their affiliated organisations: Mr. F. March, Mr. J. Shields, Ms. M. Hedley, Mr. A. Kube, Mr. D. Bean, Mr. D. Fudge, Ms. L. Nicholson, Ms. N. Riche and Mr. F. Moorgen. Meetings were also held with representatives of the Canadian Teachers' Federation (CTF), namely, President Mr. F. Garritty, Mr. S. McDowell, Mr. R. Barkar, Ms. E. McMurphy, Mr. D. Yorke and Mrs. S. Hanley. In Edmonton (16-17 September 1985) Assistant Deputy Minister Mr. A. Kennedy, Ms. C. Mead, Mr. R. Maybank, Mr. W. Sawadsky, Mr. P. Whittaker and Ms. D. Gares; and representatives of the Alberta Union of Provincial Employees (AUPE), namely President Mr. J. Booth, Mr. T. Christian, Mr. G. Bourgeois, Mr. F. McRae, Mr. F. Moorgen, Ms. M. Sykes, Mr. S. Nymchuk, Ms. P. Wocknitz and Ms. K. Lilly as well as several other witnessess including Mr. B. Olien, Mr. D. Andersen, Mr. W. Leeson, Professor J. Robb and Mr. D. Werlin. Meetings were also held with representatives of the Confederation of Alberta Faculty Associations: Professor R. Heron, Mr. G. Unger, Mr. A. Mandelbaum and Professor M. Sandilands. In Toronto (18-20 September 1985) Mr. D. Gilbert, Director of Policy Branch and Ms. J. Bass, Ms. K. Boney, Ms. M. Kenny, Mr. R. Peebles, Mr. Q. Silk and Mr. R. Huston; and representatives of the Service Enployees International Union (SEIU), namely President Mr. T. Roscoe and Mr. J. van Beek together with legal counsel Mr. J. Sack, Mr. S. Barrett and Mr. Poskranzer; the Ontario Public Service Employees Union (OPSEU), namely President Mr. J. Clancy, Mr. C. Paliare, Mr. A. Todd, Ms. J. Gates, Ms. S. Vallance, Mr. J. Bernard, Ms. R. Lees and Mr. R. Martin; the Canadian Union of Public Employees (CUPE), namely President Ms. L. Nicholson, Mr. L. Kovacsi, Mr. D. Macleod, Mr. G. Williams, Mr. D. Foley; as well as the Ontario Teachers' Federations, namely, President Mr. G.Matte, Ms. S. Hildreth, Mr. D. McAndless, Mr. K. Kennedy, Mr. M. Buchanan, Mrs. M. Wilson, Mr. M. Green, Mr. J. Carey and Mr. D. Halesworth. In St. Johns (23-24 September 1985) Assistant Deputy Minister Mr. H. Noseworthy, Ms. D. Fry, Mr. L. Powell, Mr. A. Andrews and Mr. J. O'Neill; and representatives of the Newfoundland Association of Public Employees (NAPE), namely President Mr. F. March, Mr. E. Seward, Ms. M. Fleming, Mr. P. Ivany, Mr. E. Hogan, Ms. E. Price, Mr. D. Curtis and Mr. D. Harnett. Case No. 1285 COMPLAINT PRESENTED BY THE NATIONAL TRADE UNION CO-ORDINATING BODY AGAINST THE GOVERNMENT OF CHILE 156. The complaint is set forth in a communication from the National Trade Union Co-ordinating Body dated 7 May 1984. The Government replied by a communication dated 24 January 1985. 157. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). 1. Physical attack on a trade union leader (a) The complainant's allegations 158. The complainant alleges that Mr. Clotario Blest, the founder of the National Association of Public Employees (ANEF) and of the Unitary Confederation of Workers (CUT), was the victim of a physical attack in May 1983. The attack was perpetrated the day after the leader had participated in the meeting at which the National Command of Workers was formed, bringing together the principal national trade union organisations of the country. (b) The Government's reply 159. The Government states that at the time it deeply regretted the physical attack made on Mr. Clotario Blest, the founder of the National Association of Public Employees (ANEF). The aide-de-camp of the President of the Republic had therefore visited Mr. Blest's home in order to convey to him the personal feelings of the President of the Republic and his interest in the victim's health. (c) The Committee's conclusion 160. The Committee observes that neither the complainant nor the Government has indicated who is thought to be responsible for the alleged attack or what form it took. In these circumstances, the Committee does not consider that it is in possession of sufficient information to express an opinion on the matter. 2. Allegations concerning detention (a) The complainant's allegations 161. The complainant organisation makes the following allegations: - On 9 June 1983 Mr. Roberto Arredondo, the national leader of the Bahía Employees' Federation and Chairman of the Regional Council of the Democratic Union of Workers (UDT) at Concepción, was detained for several hours by carabineros and accused of carrying invitations to the protest called by the National Command of Workers. - On 10 June 1983 officials of the Police Department detained at Rancagua Marcos Molina, first director of the El Teniente area organisation and treasurer of the Caletones Industrial Trade Union, and Arturo Vera, first director of the Sewel y Mina Trade Union. - Eduardo Sepúlveda, national leader of the "Peasant Triumph" National Confederation of Agricultural Workers, and José Morales, President of the Talca Provincial Federation of that organisation, were detained at Talca. Both arrests took place on 11 June 1983. - In July 1983 Mr. Diego Lebitum, the secretary of Establecimientos Savory Trade Union No. 2, and Mr. Guillermo Saavedra Pinto, a member of the Union, were arrested while they were holding a peaceful public demonstration in the course of a legal strike called by their union. - In October 1983 Rodolfo Seguel, Eugenio López, Manuel Rodríguez, Eduardo Díaz, Juan Meneses and Enés Zepeda, the trade union leaders of the "El Teniente" copper mine, were detained for several hours for holding a peaceful demonstration. - Three workers were detained in October 1983 for carrying placards at a peaceful demonstration by 40 persons who were protesting at having been dismissed en bloc from their work at the Club de la Unión. - In December 1983 Hernol Flores, the President of the ANEF, was detained for distributing leaflets on the public highway. - In December 1983 three leaders of the Youth Department of the National Trade Union Co-ordinating Body were detained for reading a greeting to Raúl Alfonsín, the President of Argentina, in front of that country's Embassy in the capital. - In March 1984 Manuel Bustos, the President of the National Trade Union Co-ordinating Body, and Sergio Troncoso, President of the Confederation of Building Workers, together with other persons, were detained for heading a peaceful protest march demanding the release of José Ruiz Di Giorgio. (b) The Government's reply 162. With reference to the alleged detention of Mr. Roberto Arredondo, the trade union leader, the Government states that it has no information on this matter. From the tenor of the complaint, the detention would appear to have been due to the carriage of pamphlets bearing instructions for one of the so-called "peaceful protests" called by sectors in opposition to the Government. According to the complainants, however, the person in question was then released. The Government stresses the need for complainants to furnish more information so that an answer may be given, for complaints made in that way are lacking in seriousness. 163. With reference to the alleged detention of Mr. Marcos Molina Catalán and Mr. Arturo Vera Mauro, the Government states that at about 2.20 p.m. on 11 June 1983, as those persons were approaching a taxi loaded with leaflets inviting participation in actions directed against the Government, they were intercepted by officers of the Rancagua Police Department, who arrested them and took them to the police station. After interrogation at the police station, where they spent six hours, they were released. There are no legal proceedings in progress against them at the present time and both are at liberty. 164. With regard to the alleged detention of Eduardo Sepúlveda and José Morales, the Government states that, "owing to the time that has elapsed, it has not been possible to confirm these complaints". 165. With reference to the detention of Mr. Diego Lebitum and Mr. Guillermo Saavedra Pinto, the Government states that, owing to the time that has elapsed, it has not been possible to check the accuracy of this complaint. If it was accurate, the matter was purely one for the police and obviously, as has been explained in other cases, detainees are released once the police have checked their identity and address. 166. With reference to the detentions which occurred in October 1983, the Government states that, when a breach of public order is attempted, the police, in discharge of their obligation to ensure the maintenance of order and civic peace, proceed to arrest the perpetrators in order to check their identify and address and, if the situation so warrants, summon them to appear before the local police court which deals with offences of this kind. The cases mentioned by the complainant organisation did not reach the stage of being heard by the competent local police court. 167. With reference to the detention of Mr. Hernol Flores, the Government states that there is no record of his detention and that, since neither the date nor the place of detention nor the authority which ordered it are mentioned, the information is insufficient for the purpose of verifying the complaint. As to the alleged detention of three leaders of the Youth Department of the National Trade Union Co-ordinating Body, the Government states that this complaint is based on a routine police operation. A group of persons obstructed the free movement of pedestrians and access to the Embassy of the Argentine Republic at Santiago. The police, in the performance of their duty to maintain public order, disbanded this unauthorised public meeting and, when the identity and addresses of those responsible had been checked, they were released. Consequently, the Government continues, this complaint has nothing to do with freedom of association. 168. The Government states further that Mr. Manuel Bustos and Mr. Sergio Troncoso were detained, together with five other persons, by carabineros on duty on the public highway on 22 March 1984 and taken to the First Carabineros Station. The grounds for their detention were that, together with a group of 50 persons, they went on a march through central streets with the Lawcourts Building as their goal. This procession was held without permission from the authorities and in such a way as to cause obstructions to pedestrian and vehicular traffic. These persons were released immediately after their identity and addresses had been checked and they had been summoned to appear before the local police court for the offence presumed to have been committed. (c) The Committee's conclusions 169. The Committee observes that, with reference to some of the alleged detentions, the Government states that the lack of data from the complainant or the lapse of time has made it impossible to verify the facts. With reference to other detentions, the Government has indicated that the facts had nothing to do with freedom of association or that the persons concerned had been held for several hours for the purpose of checking their identity and addresses, questioning them and, where appropriate, summoning them to appear before the local police court. 170. The Committee concludes that it is not in possession of sufficient information to express a separate opinion on each of the alleged detentions. The Committee wishes to point out, however, that the number of instances in which trade union leaders and trade unionists are alleged to have been detained and summonsed or questioned runs to about a score. In these circumstances, while observing that the allegations date back in most cases to 1983 and that the persons in question are at liberty, the Committee considers it useful to repeat that measures depriving trade union leaders and trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. 3. Allegations concerning demonstrations (a) The complainant's allegations 171. The complainant organisation makes the following allegations: - In October 1983 a public demonstration by 70 trade union organisations in the Plaza 11 de Septiembre at Valparaiso was violently prevented. The repressive measures left several persons injured and 42 in detention. - In November 1983 the Administration at Rancagua withheld permission for marches preparatory to an action proposed by the Workers' Provincial Command of Cachapoal. Similarly the Administration withheld permission for an action by the same organisation in the place it had chosen. - On 14 December 1983 300 self-employed workers (itinerant vendors) were subjected to brutal repressive action in the centre of Santiago and had to seek refuge in Santiago Cathedral. These workers, organised in the Itinerant Vendors' Trade Union, in addition to suffering physical acts of oppression, were subjected to an illegal scrutiny of their merchandise and prevented from working in the streets of Santiago by a security force composed of special squads of carabineros and civilians reinforced by dogs specially trained to attack human beings. - In January 1984 a demonstration called by the National Trade Union Co-ordinating Body was violently put down. Carabineros arrested 27 persons and left about 10 injured. (b) The Government's reply 172. With reference to the allegations concerning the demonstration in the Plaza 11 de Septiembre at Valparaiso, the Government states that this accusation suffers from vagueness and cannot be verified owing to the time which has elapsed. Generally speaking, the Government points out that the police force has the inescapable duty of maintaining public order and keeping the civic peace and that, if a breach of public order has been attempted, the police obviously has to intervene. In such cases the persons presumed to have been arrested, whose names are not given, are released after their identity and addresses have been checked, unless they are summoned to appear before the competent local police court. 173. The Government states further that the Regional Administration at Rancagua withheld permission for marches owing to the problems they create for pedestrian and vehicular traffic. Furthermore the Workers' Provincial Command of Cachapoal is not a trade union organisation and has no legal personality, legal existence or known address. Its presumed leaders are not registered and it is not known who elected them or for how long. It is a de facto body accountable to no one. 174. With reference to the alleged oppression of itinerant vendors, the Government states that it has not been possible to confirm this complaint. The Government points out that the police periodically dislodge and clear out of the central streets of the city of Santiago a group of itinerant vendors who set themselves up in the roadway and obstruct passers-by, because these itinerant vendors hold no municipal permit or licence and pay no taxes and because the goods they offer for sale are faulty and harmful to the health and hygiene of the population. For these reasons the police expel them from the central area of the city. 175. With reference to the alleged violent suppression of the demonstration called by the National Trade Union Co-ordinating Body, the Government states that this complaint cannot be answered because the exact date and place of the occurrence and the names of the persons presumed to have been arrested are not given. With regard to the presumed detention of persons, the Government states in general terms that, in the exercise of the inalienable duty that vests in every authority in any country to maintain public order, the police are empowered to arrest any persons who on the public highway, in defiance of laws and regulations, proceed to perform acts and deeds which may constitute some offence or punishable act. (c) The Committee's conclusions 176. The Committee observes that, with reference to two of the allegations, the Government states that the complainants have not furnished enough information. The Committee likewise notes that, according to the Government, the Administration at Rancagua withheld permission for marches preparatory to an action proposed by the Workers' Provincial Command of Cachapoal owing to the problems they would create for pedestrian and vehicular traffic. Lastly the Committee observes that the Government has been unable to confirm the alleged oppression of street vendors in the centre of Santiago, although it states that these workers are periodically expelled from the central area by the police for non-compliance with the administrative rules concerning safety, hygiene, taxes, etc. In these circumstances the Committee reiterates in general terms that trade union rights include the right to organise public demonstrations. Although the prohibition of demonstrations on the public highway in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organisers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances. 4. Allegations concerning violations of the internal autonomy of trade union organisations (a) The complainant's allegations 177. The complainant organisation makes the following allegations: - In June 1983 the Provincial Inspectorate of Labour at Santiago removed Ricardo Lecaros, the Vice-President of the Metallurgical Confederation (CONSTRAMET), from office for having been tried under the Act on the Internal Security of the State. - In October 1983 the Provincial Directorate of Labour at Rancagua prevented Rodemil Aranda and Marcos Molina, the present leaders, whose dismissal is under review by the courts, from standing for election in the Caletones Industrial Trade Union. The same Provincial Directorate also suspended the record of the election held in the Caletones Industrial Trade Union. - In October 1983 the Provincial Director of Labour at Rancagua requisitioned the record books of the Caletones Industrial and Professional Trade Unions and the Sewel y Minas Industrial and Professional Trade Unions in order to place them at the disposal of the undertaking for use in support of its case in the proceedings against Rodolfo Seguel. (b) The Government's reply 178. The Government states that Mr. Lecaros was sentenced for incitement to illegal paralysis of national activities, an offence defined in the State Security Act. This meant that he did not meet the legal requirements for appointment as a trade union leader, since section 21 of Legislative Decree No. 2756 on the organisation of trade unions requires inter alia that in order to be a trade union leader he should "not have been sentenced for a crime or an offence punishable by a severe penalty or for an offence relating to the administration of trade union property, or be currently accused of one". In these circumstances Mr. Lecaros was disqualified for the performance of trade union functions. 179. The Government adds that, in virtue of the aforementioned law, a person placed under a disqualification by decision of the Directorate of Labour may appeal to the courts within a time-limit of five days. According to the Government, the information furnished in the complaint is insufficient and it is necessary to know in what court and on what date the person concerned appealed against the order of disqualification, so that more information may be supplied. 180. With reference to the allegations concerning Mr. Rodemil Aranda and Mr. Marcos Molina, the Government states that these workers could not stand for election as trade union leaders because they were not workers of the undertaking and proceedings brought by the same persons were pending before the Second Court at Rancagua petitioning that the measure discontinuing their contracts of employment adopted by the "El Teniente" Division of CODELCO-Chile should be declared null and void. 181. With reference to the suspension of the record of the election held in the Caletones Industrial Trade Union, the Government states that the labour inspectors, in their capacity as authenticating officers, were checking the election on the premises of the trade union when they were notified of a decision of the Court of Appeals at Rancagua directing that the election record should be suspended for such time as the proceedings against three leaders were pending. The election eventually took effect on 29 January 1984 after this had been authorised by the Court of Appeals at Rancagua. 182. Furthermore the Government states that it is not true that the record books of the Caletones Industrial and Professional Trade Unions and the Sewel y Minas Industrial and Professional Trade Unions were requisitioned. In reality the labour inspector placed a copy of the Unions' records at the disposal of the court for use as evidence in the interests of a better decision in the proceedings. (c) The Committee's conclusions 183. The Committee takes note that, according to the Government, the record books of the Caletones and Sewel y Minas Industrial and Professional Trade Unions were not requisitioned but that the labour inspector placed a copy of their records at the court's disposal for use as evidence in the interests of a better decision in the proceedings against the leader Rodolfo Seguel. 184. The Committee observes that the other facts alleged arose as a result of failure to meet the requirements laid down by law for appointment as a trade union leader. One case concerns the disqualification of a trade union leader who was sentenced for illegally paralysing national activities; in another case two leaders could not stand for election because they were not workers of the undertaking, and in a third case the judicial authority ordered the trade union elections suspended for such time as proceedings were pending against three leaders. The Committee wishes to point out in this connection that, when national legislation provides that all trade union leaders shall belong to the occupation in respect of which the organisation carries on its activities, the principles of freedom of association may be impaired. In fact, in such cases, the dismissal of a worker who is a trade union leader may, by causing him to lose his status as a trade union officer, infringe the freedom of activity of the organisation and its right to elect representatives in freedom, and may even leave the way open for acts of interference by the employer [see Freedom of Association and Collective Bargaining, General Survey by the Committee of Experts, Report III (Part 4 B), ILC, 69th Session, 1983, para. 158]. Similarly, a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to exercising trade union office with integrity. 5. Allegations concerning raids on trade union premises (a) The complainant's allegations 185. The complainant organisation makes the following allegations: - Arturo Martínez, the President of the National Graphic Confederation, made an early application for amparo (enforcement of constitutional rights) on 13 June 1983 as a result of a visit which carabineros paid to the Confederation's headquarters, without producing a judicial warrant, for the purpose of questioning the caretaker about the activities carried on by that leader. - In June 1983 the headquarters of the National Federation of Petroleum Trade Unions at Santiago was raided. - In November 1983 carabineros made an illegal and violent raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú while the members and their families were holding a celebration there. Gerardo Rodríguez, a member of the Union, was arrested in the raid and later released without charges. The carabineros threatened to interrupt any other activity of the trade union in the same way. - In March 1984 a group of five persons armed with bludgeons and chains made a night attack on the headquarters of the National Association of Public Employees (ANEF). This was the third attack on the headquarters. (b) The Government's reply 186. The Government states that it fails to see what connection the facts alleged concerning the National Graphic Confederation can have with freedom of association. According to the Government, the fact that the person presumed to be affected - who has never been arrested - has made an early application to the courts for amparo shows that his rights are being properly protected. 187. With reference to the alleged raid on the headquarters of the National Federation of Petroleum Trade Unions, the Government states that it has no information as to its having happened, and notes that there is no indication as to who made the search, or why. 188. With reference to the alleged raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú, the Government states that this trade union applied to the Court of Appeals at Santiago for protection. On 9 December 1983 the Court ruled denying the application. Those concerned lodged an appeal with the Supreme Court, which also rejected it, and the dossier was accordingly closed. 189. With reference to the alleged night attack on the headquarters of the ANEF, the Government states that this is "purely a police matter outside the Government's control". In order to provide more information it would have been necessary to know the date and, if applicable, the court before which the charge was laid. (c) The Committee's conclusions 190. The Committee takes note of the Government's reply that it has no information concerning the alleged raid on the National Federation of Petroleum Trade Unions and that the Supreme Court rejected the appeal lodged in connection with the alleged raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú. 191. The Committee observes, on the other hand, that the Government has not expressly denied that the visit paid by carabineros to the headquarters of the National Graphic Confederation was effected without producing a judicial warrant, and that it has confirmed that an application was made to the court in that connection. 192. In these circumstances, although it observes that neither the complainant nor the Government has furnished sufficiently detailed information, the Committee reiterates the principle that the right of the inviolability of union premises also necessarily implies that the public authorities cannot enter such premises without prior authorisation or without having obtained a legal warrant to do so [see for example 230th Report, Case No. 1200 (Chile), para. 610, and 238th Report, Case No. 1169 (Nicaragua), para. 227]. 6. Allegations concerning acts of anti-trade union discrimination (a) The complainant's allegations 193. The complainant organisation makes the following allegations: - In July 1983 the firm of Vercovich Ltda. took reprisals against the workers who had participated in a legal strike, and the workers were unable to induce the competent authority to correct the situation. Twenty-five per cent of the workers involved in the collective bargaining were dismissed and the wages of the remainder were arbitrarily reduced. - In August 1983 eight leaders of the Industria Hucke at Valparaiso were dismissed from that undertaking in virtue of section 13, clause (f), of Legislative Decree No. 2200 under which staff may be dismissed if the undertaking's needs so dictate. The leaders affected were: Luis Palma Romero, José Márquez, Carlos Carreño Castro, Oscar Bonilla, Manuel Cárdenas, Pedro Cortés Fredes, José Villalón Tapia and Santiago Rubio Sepúlveda. - In September 1983 the City Hotel threatened to dismiss workers who did not give up the trade union and actually dismissed two workers without the competent authority intervening to correct that situation. - The Hotel Carrera dismissed Juana Santos, chief telephone operator, for her prominent participation in a legal strike. - Abraham Santángel was dismissed 48 hours after being elected President of Industria Hucke Trade Union No. 1. - In November 1983 the Empresa Nacional del Carbón (ENACAR) dismissed the trade union leaders of Schwager Trade Union No. 5: Luis Badilla, Víctor Jaramillo and Juan Flores. Furthermore the Union was dissolved by court order. - In December 1983 the Hotel Galerías dismissed 12 persons on the pretext of staff cuts, while at the same time offering pay improvements to all who gave up the Union. - In January 1984 the firm of Parro, Alvariño y Cía. dismissed two trade union leaders for presenting draft collective agreements. - The firm of Goodyear dismissed Juan Carlos Martínez, the leader of Trade Union No. 2, in January 1984. (b) The Government's reply 194. With reference to the allegations concerning the firm of Vercovich Ltda. , the Government states that it cannot answer these because the necessary information (date, names, etc.) has not been supplied. The Government also reports that there is no record to show that the persons presumed to have been affected have made use of the statutory remedies. 195. With reference to the dismissal of eight trade union leaders from the Industria Hucke at Valparaiso, the Government states that on 10 August 1983 the contracts of the trade union leaders of Trade Union No. 1 of the firm of Hucke at Valparaiso (Mr. Carlos Carreño Castro, Mr. Oscar Bonilla, Mr. Luis Palma Romero, Mr. José Marquez and Mr. Manuel Cárdenas) were terminated by agreement; these persons signed discharges before the Labour Inspectorate stating that the employer owed them nothing and that they had no complaint to make. The leaders of Trade Union No. 2 (Mr. Pedro Cortés Fredes, Mr. Santiago Rubio Sepúlveda and Mr. José Villalón Tapia) were dismissed and proceeded to lay before the courts judicial complaints against the undertaking. The Labour Inspectorate at Valparaiso applied to the firm an administrative fine of 20 Development Units in cash on 12 August 1983. 196. With reference to the allegations concerning the City Hotel, the Government states that this firm has reported that the trade union is fully operative and its leadership is functioning. 197. With reference to the dismissal of the trade unionist Juana Santos the Government explains that, during the legal strike called by the workers' trade union at the Hotel Carrera, the firm temporarily engaged a few persons to do the essential jobs needed to keep the hotel in operation. The person mentioned, who holds no trade union office and who was working as a telephonist, sabotaged the use of the telephone equipment by obstructing the work of her temporary replacement, and for this the firm dismissed her. The person concerned complained of the firm to the courts, which sentenced the employer to pay compensation. 198. With reference to the allegations concerning the firm of ENACAR, the Government states that Trade Union No. 5 was declared dissolved for lack of members by a judicial decision dated 2 November 1983. The firm of ENACAR offered each of the union's leaders, Mr. Luis Badilla, Mr. Víctor Jaramillo and Mr. Juan Flores, a post because when they were leaders of the trade union they did no work. However, they did not accept the work which the firm offered them and their contracts were withdrawn from them on 25 November 1983. 199. With reference to the dismissal of workers of the Hotel Galerías, the Government states that these dismissals were due to economic mismanagement of the undertaking. It is not true that workers were dismissed to induce them to give up the trade union. The fact of the matter was that four persons were dismissed at that time for reasons of expense, and that this did not affect the existence of the trade union at all. 200. With reference to the allegations concerning the firm of Parro, the Government states that the two persons dismissed as reported in the complaint were dismissed before the collective bargaining session, so that when the draft collective agreement was presented those persons were not workers of the undertaking. They signed a discharge before the Labour Inspectorate and were paid everything due to them. The collective bargaining was concluded successfully with the signing of a collective agreement for two years ending in January 1986. 201. With reference to the firm of Goodyear, the Government states that Mr. Juan Carlos Martínez was President of Operatives' Trade Union No. 1 and that when he was dismissed he was not a trade union leader. In 1982 proceedings were taken to remove him from office on the grounds that he had misappropriated money intended for the maintenance of the ambulance and for staff recreational activities. The court removed him from office and the Court of Appeals confirmed the removal. (c) The Committee's conclusions 202. The Committee takes note that the Government states that it cannot answer the allegations concerning dismissals from the firm of Vercovich because the complainant organisation has not supplied sufficient information. The Committee takes note further that, according to the Government, the three leaders of the firm of ENACAR to whom the complainant refers did not accept an offer of work in the undertaking and that five trade union leaders of the Hucke Company at Valparaiso terminated their contracts by agreement with the undertaking. The Committee also notes that, according to the Government, the dismissals that took place in the Hotel Galerías were only four in number, did not affect the existence of the trade union at all and were due to economic mismanagement of the undertaking. Lastly the Committee notes that, according to the Government, the persons dismissed from the firm of Parro were dismissed before the draft collective agreement was presented and that Juan Carlos Martínez (of the firm of Goodyear) was not a trade union leader when he was dismissed because the judicial authority had removed him from office for misappropriation of funds. 203. The Committee observes, on the other hand, that the legitimacy of other cases of dismissal alleged by the complainant has not been substantiated by the Government: namely, the dismissal of Abraham Santángel (which is said to have taken place 48 hours after his election as President of Industria Hucke Trade Union No. 1) and the two alleged dismissals from the City Hotel. The Government acknowledges, on the other hand, that the Labour Inspectorate of Valparaiso applied an administrative fine to the Hucke Company because of the dismissal of three leaders of Trade Union No. 2 and that in the case of the dismissal of the trade unionist Juana Santos the courts sentenced the Hotel Carrera to pay compensation. 204. In these circumstances, the Committee draws the Government's attention to the principle that no worker should be subjected to discrimination in employment on the grounds of his trade union membership or activity, whether past or present [see, for example, 235th Report, Cases Nos. 997, 999 and 1029 (Turkey), para. 38]. In this connection the Committee has indicated on previous occasions that one way of protecting trade union leaders is to provide that they cannot be dismissed either during the performance of their duties or for a certain period of time after the expiry of their mandate except, of course, where a serious offence has been committed [see, for example, 217th Report, Case No. 1063 (Costa Rica), para. 151]. 7. Other allegations (a) The complainant's allegations 205. The complainant organisation makes the following allegations: - In August 1983 Rodolfo Seguel was prevented from leaving the country to attend the Congress of the International Confederation of Free Trade Unions (ICFTU). The ban was imposed by Judge Hernán Cereceda. - In October 1983 the Military Junta approved an Act under which the liability for any act of violence perpetrated on the occasion of public protests or demonstrations automatically vests in those who call for such acts. The Act provides penalties of imprisonment, restricted residence or exile. It is perfectly obvious that this Act is directed specifically against the National Command of Workers and any other dissident organisation which calls for the expression of opposition to the regime. - In January 1984 the Chuquicamata Mining Division prevented Rodolfo Seguel, the President of the Confederation of Copper Workers, from entering that mine. - The workers of the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Households (POJH) do not enjoy the right to organise themselves in trade unions and to present petitions. (b) The Government's reply 206. The Government states that the Code of Penal Procedure allows a judge who is trying a person for the presumed commission of an offence to fix bail for him on condition that he does not leave the country and thus flout the course of justice. The courts and judges are entirely independent in administering justice in Chile. Consequently the fact that Mr. Hernán Cereceda Bravo, Judge of the Court of Appeals at Santiago, has forbidden Mr. Rodolfo Seguel to leave the country is a matter within his sole jurisdiction. 207. The Government also states that the allegation that Mr. Rodolfo Seguel, the trade union leader, was prevented from entering the Chuquicamata Mining Division could not be verified owing to the vagueness of the information supplied. There is no indication of the exact date, the place of occurrence, the authority which denied him entry, etc., particulars which are needed for a conclusive reply. 208. Furthermore the Government states that the Act objected to by the complainant is Act No. 18256, published in the Diario Oficial of 27 October 1983, which made some changes in Act No. 12927 of 1958 on State Security. The purpose of the Act in question is to punish those who promote or incite to demonstrations designed to disturb public order, incite demonstrations designed to overthrow the constituted Government, incite demonstrations designed to paralyse the country or promote a breach of order and public peace. The Act does not punish protest or public expression of opinion in opposition to the economic, social security or housing policy of the Government. The offence defined by this Act consists not in "protesting" but in promoting or inciting acts which violate the public peace. The text reads verbatim as follows: "(i) Any person who, without permission, promotes or calls for collective public acts in streets, squares and other places in public use and who promotes or incites demonstrations of any other kind that allow or facilitate a breach of the public peace." These offences are to be punishable by penalties of rigorous imprisonment, restricted residence or exile for the medium term in any of its degrees, i.e. deprivation of liberty for not less than 61 days and not more than five years. Without prejudice to the foregoing, the perpetrators of these offences will be jointly and severally liable for any damage caused by reason or on the occasion of the aforementioned acts, irrespective of such liability also laying with the material perpetrators of those acts. 209. The Government adds that there is not the slightest doubt that there is a relationship of cause and effect between a "protest call" of the kind defined by the Act and the consequences that may arise from it. Since May 1983, when the first "protests" began, they have steadily grown more violent and have accounted for a great many dead and injured. Those who "call for protests" cannot be ignorant of the consequences those calls will have. The judge who investigates the facts will weigh the evidence and the judgement in these proceedings conscientiously as provided by section 27 of the State Security Act. 210. Lastly the Government states that PEM and POJH are a form of unemployment benefit, and that their beneficiaries consequently cannot organise themselves in trade unions. The right to organise in Chile, as under all the systems of legislation in the world, vests only in workers who have an employment relationship with their employer. (c) The Committee's conclusions 211. The Committee takes note that, according to the Government, the prohibition on leaving the country which was imposed on Mr. Rodolfo Seguel, the trade union leader, was ordered by a judge of the Court of Appeals in virtue of the Code of Penal Procedure which allows a person sub judice for the presumed commission of an offence to be prevented from leaving the country. The Committee also notes that the Government states that, for lack of information and details from the complainant, it has been unable to verify the allegation that Mr. Rodolfo Seguel, the trade union leader, was prevented from entering the Chuquicamata Mining Division. 212. With reference to Act No. 18256, published in the Diario Oficial of 27 October 1983, which punishes "any person who, without permission, promotes or calls for collective public acts in streets, squares and other places in public use and who promotes or incites demonstrations of any other kind that allow or facilitate a breach of the public peace", the Committee wishes to point out in this connection that the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organisers of a demonstration concerning the place where it will be held and the manner in which it will take place. 213. Lastly, with reference to the denial to the workers of the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Households (POJH) of the right to organise themselves in trade unions and to present petitions, the Committee takes note that, according to the Government, PEM and POJH are a form of unemployment benefit, with the result that their beneficiaries cannot organise because in Chile the right to organise vests only in workers who have an employment relationship with their employer. In this connection, the Committee points out to the Government that, in virtue of the principles of freedom of association, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organisations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship with an employer, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions and who should nevertheless enjoy the right to organise. Consequently the Committee requests the Government to take measures with a view to recognising the right of the workers of PEM and POJH to organise. * * * 214. Lastly the complainant organisation presents a series of allegations which have already been examined by the Committee in connection with other cases, or which do not relate to specific breaches of freedom of association. The Committee's recommendations 215. In these circumstances the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: In view of the gravity of the allegations in this case the Committee deeply regrets that the Government has not supplied sufficiently detailed replies to all the allegations. It therefore reminds the Government of the importance which it attaches to the following principles: (a) Measures depriving trade union leaders and trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. (b) Trade Union rights include the right to organise public demonstrations. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organisers of a demonstration concerning the place where it will be held and the manner in which it will take place. (c) According to the latest General Survey of the Committee of Experts, national legislation which provides that all trade union leaders shall belong to the occupation in respect of which the organisation carries on its activities may impair the principles of freedom of association. In such a case, the dismissal of a worker who is a trade union leader causes him to lose his status as a trade union officer, and impedes the freedom of activity of the organisation and its right to elect its representatives in freedom. By placing a trade union leader in this situation the employer interferes in trade union activity. (d) Similarly, a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to exercising trade union office with integrity. (e) The inviolability of union premises implies that the public authorities should not enter such premises without prior authorisation or without having obtained a legal warrant to do so. (f) No worker should be subjected to discrimination in employment on the grounds of his trade union membership or activity, whether past or present. The Committee has indicated on previous occasions that the protection of trade union leaders can only be properly ensured if they cannot be dismissed either during the performance of their functions or for a certain period of time after the expiry of their mandate, except in cases where a serious fault has been committed. (g) The Committee requests the Government to take measures with a view to recognising the right of the workers of the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Households (POJH) to organise. Case No. 1287 COMPLAINT PRESENTED BY THE NATIONAL FEDERATION OF ELECTRICAL AND POSTAL COMMUNICATIONS EMPLOYEES AGAINST THE GOVERNMENT OF COSTA RICA 216. The complaint is made in a communication from the National Federation of Electrical and Postal Communications Employees dated 16 May 1984. The Government replied by a communication dated 24 June 1985. 217. Costa Rica 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. Allegations of the complainant 218. The complainant alleges in its communication of 16 May 1984 that, in violation of the collective agreement, Mr. Guido Núñez Román, General Secretary of the Industrial Union of Electrical and Telecommunications Workers, was dismissed in May 1981 for having denounced cases of discrimination in the National Power and Light Company and corruption in certain quarters in the use of that company's property. The complainant states that the First Labour Court ruled in Mr. Núñez Román's favour, observing that the collective agreement had been violated by failure to follow the prescribed procedure. The Company appealed to the superior Labour Court which, in 1984, delivered judgement on the same lines as the Court of First Instance. In April 1984 the Company filed an application for cassation. 219. The complainant further alleges that the collective agreement in force is repeatedly violated in the National Power and Light Company, specifically in the following instances: (a) wage adjustment of 20 per cent for certain workers (section 11); (b) seniority adjustment of 7.5 per cent in accordance with the collective agreement (section 69); (c) appointment of staff at foreman level without holding a competition (section 88); (d) refusal to give the Savings and Loan Fund to the workers, leaving it in the Company's name (section 89); (e) refusal to grant other rights established for all workers in the collective agreement (sections 61, 54, 25, 26 and others). 220. Lastly the complainant makes a series of allegations which go back many years or which do not refer to violations of freedom of association. B. The Government's reply 221. The Government states in its communication of 24 June 1985 that, in the case of the dismissal of Guido Núñez Román, the procedure of dismissal without employer's liability was applied to him for having insulted, libelled and defamed the management and high officials of the undertaking in various documents which were signed or authorised by Guido Núñez and which were circulated not only within the Company but also among the public. Although the case was, relatively speaking, won by Guido Núñez at first instance, the Court stated: "There is no claim to lost wages under section 82 of the Labour Code because, although the offence with which the plaintiff was charged was not sufficiently serious to warrant dismissal, the fact is that, in the opinion of the undersigned, there was always a disrespect for the employer's representatives ...". Later in the same judgement, the Court explained that the plaintiff had uttered his expressions with " animus defendendi " and not with " animus injuriandi ", and on that ground it declared the dismissal null and void. Both parties appealed against the judgement delivered at first instance inasmuch as the plaintiff, among other petitions, asked for reinstatement, which had been refused at first instance; then the Superior Labour Court declared: "And there is no doubt that, in view of the foregoing, the conclusion reached is that the grounds for dismissal were not met because the "intention to insult" was lacking, since the expression was framed in general terms, without specifying persons ...". For these reasons the Court considered that, although the offence had been committed, dismissal was not the right penalty in view of the circumstances surrounding the case. 222. The Government adds that, on 16 April 1984, Guido Núñez and the Company appealed against the judgement of the Superior Labour Court. The Second Chamber of the Supreme Court of Justice concluded on 3 October 1984 that "in view of the phrases which occur repeatedly in the dossier - and which therefore need not be repeated - if we take into account this background, the plaintiff's position in defence of the workers and what he said in this letter in, perhaps, rather rough phrases, the truth is that he did not address them to a particular person or persons but in general terms to those running the Company. In these circumstances, there were insufficient grounds for punishing the plaintiff with dismissal rather than a disciplinary penalty of another magnitude, because the truth is that he did not use those phrases in his personal capacity ... . Therefore he must be excused payment of the costs because, although he committed the offence, it was not of such gravity as to warrant his removal from his post, in this case owing to the circumstances surrounding the events". Guido Núñez was again refused reinstatement by this Court, so that the only thing he was granted by the aforementioned courts at the conclusion of the proceedings was the award of costs. 223. Lastly, with regard to the alleged violations of certain provisions of the collective agreement in force in the National Power and Light Company, the Government states that the instances referred to by the complainant are being discussed and clarified before the courts. C. Conclusions of the Committee 224. With regard to the alleged dismissal of Mr. Guido Núñez Román, the trade union leader, in May 1981 for having denounced cases of discrimination and corruption in the National Power and Light Company, the Committee notes that that Company applied to him the procedure of dismissal without employer's liability for having insulted, libelled and defamed the management and high officials of the undertaking. 225. The Committee observes that, on 3 October 1984, the Second Chamber of the Supreme Court of Justice concluded at last instance that Mr. Guido Núñez Román's conduct constituted "insufficient grounds for punishing the plaintiff with dismissal rather than a disciplinary penalty of another magnitude, because the truth is that he did not use those phrases in his personal capacity ..." ; later, furthermore, the Supreme Court states that the offence was not of such gravity as to warrant his removal from his post. The Committee further observes that, although the aforementioned judicial decision recognised Mr. Núñez Román's right to payment of his costs, it denied him reinstatement in his employment. 226. In these circumstances, the Committee can only conclude that the dismissal of Mr. Guido Núñez Román, the trade union leader, was motivated by his trade union activities, and constituted anti-trade union discrimination contrary to Convention No. 98. The Committee consequently requests the Government to take steps with a view to the reinstatement of this trade union leader in his employment. 227. More generally the Committee wishes to point out that section 82 of the Labour Code of Costa Rica provides in its second subsection that: "If a dispute arises subsequent to the dismissal and due proof of the reason is not forthcoming, the employee shall be entitled to payment of the wages due in lieu of notice and to any leaving grant which may be due to him and, by way of damages, to the wages which he would have earned from the date of the termination of the contract to the date on which a final judgment is given against the employer". In this connection, the Committee draws the Government's attention to the principle that it does not appear that sufficient protection against acts of anti-union discrimination - as set out in Convention No. 98 - is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, to get rid of any worker when the true reason for the dismissal is his trade union membership or activity. This in fact means that an employer, by paying compensation, can dismiss any member of his staff, for trade union or other activities, the public authorities being powerless to prevent him from doing so. Protection is particularly desirable in the case of trade union officials who, in order to be able to carry out their duties in full independence, must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. This guarantee is also necessary to secure respect for the principle that workers' organisations have the right to elect their representatives in full freedom [see, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163]. Furthermore the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has been emphasising to the Government for some years the importance of adopting specific provisions to establish remedies and sanctions for acts of anti-union discrimination. The Committee requests the Government to take steps in that direction. 228. Lastly, with regard to the allegation concerning violations of certain provisions of the collective agreement in force in the Power and Light Company, the Committee wishes to recall that the relevant principle is that disputes arising over the interpretation or application of the provisions of collective agreements should be settled by bodies independent of the parties [see, for example, 236th Report, Case No. 1206 (Peru), para. 509]. In this connection the Committee observes that the alleged violations are being clarified before the courts. Recommendations of the Committee 229. In these circumstances the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee considers that the dismissal of Mr. Guido Núñez Román, the trade union leader, having been motivated by his trade union activities, constituted an act of anti-trade union discrimination contrary to Convention No. 98. The Committee consequently requests the Government to take steps with a view to the reinstatement of this trade union leader in his employment. (b) The Committee points out to the Government that it does not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, to get rid of any worker when the true reason for dismissal is his trade union membership or activity. (c) The Committee requests the Government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts. Case No. 1310 COMPLAINT SUBMITTED BY THE WORLD CONFEDERATION OF ORGANISATIONS OF THE TEACHING PROFESSION AGAINST THE GOVERNMENT OF COSTA RICA 230. The World Confederation of Organisations of the Teaching Profession submitted a complaint of infringement of trade union rights in Costa Rica in communications dated 16 and 17 October 1984. The Government replied on the matter in a letter dated 9 September 1985. 231. Costa Rica 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. Allegations made by the complainant 232. The World Confederation of Organisations of the Teaching Profession alleges that the premises of a member organisation, the National Association of Teachers, were searched and that the members of the Association were prosecuted in breach of an agreement signed by the Government and the unions of teachers represented by the Teachers' Front. 233. The Confederation explains that on 27 July 1984 an agreement was signed between the above-mentioned parties putting an end to the strike organised by the Teachers' Front. This agreement made provision for negotiations on a list of claims in support of which the teachers had gone on strike. The list related to salaries, the cost of school transport, the prices of certain goods and services (electricity, telephones, fuel, drinking water, transport) and the adjustment of increases in the salaries of public servants. Section 8 of the agreement provided that the Government undertook to take no measure of reprisal against workers of the Ministry of National Education, or against teacher-leaders or students because of the activities of the Teachers' Front. Lastly, in accordance with the agreement, the Government committed itself to negotiating with the Teachers' Front or alternatively to taking the measures provided for in the said agreement. 234. However, according to the complainant Confederation, the premises of the National Association of Teachers in the town of Cartago were searched, documents were removed by the judicial authorities, and subsequently 800 teachers were taken to court for having - according to the National Association of Teachers - claimed improvements in social conditions and increases in salaries which the Government had been owing them for over two years. B. The Government's reply 235. In respect of the searching of trade union premises and the court action taken against a number of unionised teachers, the Government replies that the executive authorities were not involved in these activities. They were carried out by the Office of the State Prosecutor, coming under the judicial authorities and therefore totally independent of the executive authorities. 236. The Government explains that in Costa Rica strikes in the public sector and in public education, which is considered to be a high priority public service, are illegal since they infringe article 78 of the Constitution which provides for the right to education, which is compulsory. Furthermore, the Government states, book II, title XV of the Penal Code (section 333) provides that an official or public servant who abandons his post without having legally terminated his functions, to the detriment of his service, shall be liable to a fine of 20 to 70 days' pay. Likewise, section 334, dealing with incitement to a collective abandonment of work in the public service, provides that any person inciting public servants or employees in the public service to abandon their work shall be liable to imprisonment of six months to two years and to a fine of 70 to 120 days' pay. Lastly, article 61 of the Constitution recognises the right to strike except in the case of workers in the public service. 237. The Government maintains that the provisions in question are designed to ensure the normal running of public services for the population since, in its view, a strike in these services would undermine the very existence of the State. 238. With its reply the Government encloses the text of a letter sent to the Ministry of Labour by the Head of the State Prosecutor's Office, stating that the Office in question comes under the judicial authorities and acts in complete independence as regards penal action. Consequently, the executive authorities played no part whatsoever in the proceedings taken against the teachers who took part in a strike that had been declared illegal. The letter admits that a number of trade union premises were searched, with a legal warrant, at the request of a representative of the State Prosecutor's Office since the law was looking for written proof of the connection between the trade union and the offence covered by article 333 of the Penal Code. The searches were carried out in accordance with the provisions of the Code of Penal Procedure and the trade union representatives in question have so far not proved that any administrative irregularities or abuse of power by the authorities occurred. The letter also refers to the statements made by the Government concerning the illegal nature of the strike in the public services, and points out that article 333 of the Penal Code, in respect of the collective abandonment of work by public servants or employees, causing prejudice to their service, is similar to article 330 of the Italian Penal Code. 239. The Government adds that the examining magistrate of Puntarenas, who dealt with the initial stages of the case in November 1984, ruled that the case should be withdrawn and subsequently, and as an exceptional measure, adjourned the proceedings for one year. Furthermore, the examining magistrate of Cartago, who was also seized of the affair, likewise ruled that the case be dismissed but the State Prosecutor's Office appealed against this ruling and won its appeal before the Higher Penal Court (second chamber). However, the Government goes on, the judge of Cartago, who once again judged the substance of the case, acquitted the teachers on the grounds that the stoppage of their classes caused no prejudice to the teaching system and that, although the strike had been declared illegal by the Higher Civil Court, a large nummber of pupils had stayed away from school. The Government includes copies of the above-mentioned court rulings in its reply. 240. Regarding the conversations with the Teachers' Front, the Government agrees that these did not take place but explains that this was because of divergencies within the organisation itself. It adds that it reached agreements in February and July 1985 with the National Association of Teachers and includes in its reply a copy of the said agreements relating to increases in the salaries of public servants and the setting up of a joint committee to determine the increase in the number of articles to be added to the "housewife's basket". 241. Furthermore, the Government furnishes the text of a Decree dated 20 June 1985 to revise the said "housewife's basket", to which 14 articles have been added as compared with 1984 in compliance with the agreement of 19 February 1985 between the Government and representatives of the National Association of Teachers. The Government also forwards the text of another agreement whereby the manual describing classes and teaching jobs, drawn up by the General Directorate of the Civil Service in agreement with the union, is to be submitted to the Chairman and General Secretary of the National Association of Teachers; the manual is to be included in the draft budget for 1986 as soon as its financial implications have been studied. 242. In conclusion, the Government considers that, contrary to what the complainants alleged, it has acted responsibly in this case vis-à-vis the teachers of Costa Rica. C. The Committee's conclusions 243. The present case relates to reprisals said to have been taken against unionised teachers following a strike they had called to secure acceptance of claims of an essentially economic and occupational nature. The trade unionists in question were prosecuted under Costa Rican law for having taken part in a strike and the premises of their trade union were searched to discover the link between the trade union and the strike. The Government does not deny the facts, but explains that in accordance with Costa Rican law, teachers are public sector employees who do not enjoy the right to strike. Consequently the strike was declared illegal by the judicial authorities and, on the orders of the said judicial authorities, the trade union premises were searched and the teachers prosecuted. However, they were acquitted by the courts. The Government further maintains that agreements were reached with the persons concerned to bring this labour dispute to an end. 244. The Committee notes with interest that, according to the Government, the trade unionists who had been prosecuted were acquitted and that agreements were reached with the National Association of Teachers to bring the dispute to an end. 245. Nevertheless the Committee is obliged to draw the Government's attention to the importance it has always attached to the right to strike as a legitimate means of defending the economic and social interests of workers and their organisations. [See, in particular, Fourth Report, Case No. 5 (India), para. 27.] 246. Although the Committee has recognised the principle that there may be restrictions on the right to strike, or even that strikes may be prohibited in the public service or in essential services (whether public, semi-public or private), it has frequently stated that this principle would become meaningless if the legislation defined the public service or essential services too broadly. Consequently the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, considers that any prohibition or restriction should be confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population. [See 230th Report, Case No. 1173, (Canada/British Columbia), para. 577, and Case No. 1225 (Brazil), para. 668.] The Committee considers that the teachers do not come under this category. [See, for example, 221st Report, Case No. 1097 (Poland), para. 84; 226th Report, Case No. 1164 (Honduras), para. 343; and 230th Report, Case No. 1173 (Canada/British Columbia), para. 577, already cited.] 247. The Committee therefore invites the Government to re-examine its legislation and, in particular, the provisions of the Labour Code (article 369 (a)) and of the Penal Code (sections 333 and 334) so that the list of activities in which strikes are prohibited is confined to the public service and to essential services in the strict sense of the term. The Committee's recommendations 248. In the circumstances the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee notes with interest that in the present case the unionised teachers who had been prosecuted for having taken part in a strike were acquitted and that agreements were reached with the National Association of Teachers putting an end to this dispute. (c) The Committee invites the Government to re-examine its legislation so that the list of activities in which strikes are prohibited is confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Case No. 1291 COMPLAINT SUBMITTED BY THE TRADE UNION CONFEDERATION OF COLOMBIAN WORKERS (CSTC) AGAINST THE GOVERNMENT OF COLOMBIA 249. The Committee examined this case at its meeting in November 1984, when it submitted an interim report to the Governing Body. [See 236th Report, paras. 686 to 697, approved by the Governing Body at its 228th Session (November 1984).] 250. Since then the CSTC furnished further information in support of its complaint in a communication dated 23 April 1985. The Government sent its observations on the outstanding allegations in communications of 29 May, 10 July and 13 August 1985. 251. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 252. The outstanding allegation in this case concerns the dismissal of 13 unionised workers from the enterprise "Industrías Alimenticias Noël SA". According to the complainant, this measure, which occurred when a list of grievances had been submitted to the employer, was designed to weaken the works union. The measure is also said to be contrary to section 25 of Legislative Decree No. 2351 which states that employers may not dismiss workers when a list of grievances has been submitted. 253. At its meeting in November 1984, the Committee, noting that the Government had not furnished a detailed reply to this allegation, requested the Government to send its observations on the matter. B. Subsequent developments 254. In response to a request from the Committee, the complainant organisation supplied the names of 15 dismissed workers on 23 April 1985. 255. In its communication of 29 May 1985, the Government states that the Labour Code permits the unilateral termination of the contract of employment, without the grounds being stated but with compensation being paid for the prejudice suffered. The parties are free to follow this procedure at any time without the administrative labour authority having the possibility of demanding explanations as to the grounds for the termination. Dismissed workers are entitled to appeal to the labour courts for the restitution of their rights, which is what happened in the present case. 256. In its communications of 10 July and 13 August 1985, the Government provides information on progress in the court proceedings. Thirteen workers lodged appeals with the social chambers of the Medellín courts. Rulings were handed down in three cases, in two of which the employer was acquitted. 257. The Government specifies that the contracts of employment were broken unilaterally by the employer on the basis of section 64 of the Labour Code, and of section 8 of Legislative Decree No. 2351 of 1965. This provision enables the parties to terminate the contract without stating the grounds for so doing. However it goes on to provide that the employer must pay the worker compensation corresponding to the pay he would have received during the rest of his contract or, if the contract was of unlimited duration, 45 days' pay plus supplementary benefits varying according to the worker's length of service. It is further provided that where a worker who has completed ten years' continuous service has been dismissed without justification, the labour court may, at the worker's request, order his reinstatement under the same conditions of employment and with payment of his salary or of compensation for loss of earnings. The Government maintains that Colombian labour law embodies the principle of autonomy of the parties in unilaterally terminating a contract of employment, requiring however that the party responsible for breaking the contract should make reparation. The Government states that if an employer breaks a contract of employment because he considers that a worker has not fulfilled his contract - and proves this before a court - this should not be construed as infringing trade union rights. 258. The Government also states that it is not the place of the administrative labour authority to intervene in cases before the courts. Nor is the Ministry empowered by law to determine the grounds on which a contract of employment was terminated, this being a function entrusted by the Labour Code to the labour courts. According to the Government, the rights of employers and of workers are safeguarded perfectly by the law since the latter gives both parties the possibility of unilaterally terminating a contract of employment where they consider that this has not been fulfilled and enables them to take appropriate legal action if they believe their rights have been infringed. In the Government's opinion, the law may not forbid employers or workers to terminate a contract of employment unilaterally since this would mean infringing the personal freedoms embodied in the national Constitution. The dismissals which occurred at the "Industrías Alimenticias Noël SA" enterprise are therefore normal lawful occurrences which, in accordance with the law, may be brought before the ordinary labour courts if they are considered to be illegal and/or unjust. C. The Committee's conclusions 259. The Committee has taken note of the explanations furnished by the Government concerning the dismissals which took place in "Industrías Alimenticias Noël SA". In particular it notes that, in accordance with the Colombian Labour Code, employers may unilaterally terminate a contract of employment, even without justification, by paying the workers concerned the compensation provided for by law. 260. In this connection the Committee must point out to the Government that it does not appear that sufficient protection against acts of anti-union discrimination - as set out in Convention No. 98 - is accorded by legislation which, in practice, enables employers, on condition they pay the compensation prescribed by law in all cases of unjustified dismissal, to get rid of any worker, when the true reason for dismissal is his trade union membership or activity. [See, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163.] 261. In the present case, the Committee must point out that the dismissals of members of the Noël SA works union took place at a time when the union had submitted a list of grievances to the employer on which the latter refused to negotiate. The Committee is of the view that in such a case the authorities should recognise that a presumption of acts of anti-union discrimination is involved, should rapidly undertake the necessary inquiries and, where necessary, take measures to avoid the recurrence of acts of this kind. The Committee therefore requests the Government to consider the adoption of texts providing effective protection against acts of anti-union discrimination, both in law and in practice, in accordance with Article 1 of Convention No. 98, ratified by Colombia. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case. The Committee's recommendations 262. In these circumstances, the Committee requests the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee points out to the Government that it does not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which, in practice, enables employers, on condition they pay the compensation prescribed by law for cases of unjustified dismissal, to get rid of any worker when the true reason for dismissal is his trade union membership or activity. (b) The Committee is of the view that, in cases such as that of the Noël SA enterprise, the authorities should recognise that a presumption of anti-union discrimination is involved, should rapidly undertake the necessary inquiries and should, if necessary, adopt measures to avoid a recurrence of dismissals of this kind. (c) The Committee requests the Government to consider the adoption of texts providing effective protection against acts of anti-union discrimination both in law and in practice. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case. Case No. 1293 COMPLAINTS PRESENTED BY THE UNIFIED WORKERS' CONFEDERATION AND THE GENERAL CONFEDERATION OF WORKERS AGAINST THE GOVERNMENT OF THE DOMINICAN REPUBLIC 263. The complaints are contained in communications from the Unified Workers' Confederation (CUT) and the General Confederation of Workers (CGT) dated respectively 5 July and 4 October 1984. The CUT presented additional information in a communication dated 24 July 1984, and the CGT in communications dated 13 and 17 November 1984. The Government replied in communications dated 2 November 1984 and 31 January and 23 May 1985. 264. The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainants' allegations 265. The CUT alleges that the following persons were dismissed in connection with trade union activities: Marcelino Manuel Uribe (a trade unionist in the heavy equipment undertaking of the Dominican Cement Works, dismissed without reason on 1 June 1984), Elías Adames Boyer and Alfonso Sánchez (both trade union leaders, dismissed on 16 June 1984 from the Río Haina state sugar plantation as part of an operation carried out against the CUT). 266. The CGT alleges in its first communication that the management of the "Porvenir" state sugar plantation pressured trade union leaders to leave the trade union or give up their jobs; the management also stopped the check off deduction of trade union dues in violation of the current collective agreement in force. In its later communication, the CGT states that the trade union in question has reached a satisfactory agreement on these matters with the management of the plantation. 267. The CGT adds that the National Office of Land Transportation (ONATRATE) unfairly dismissed a number of its employees, starting on 8 October 1984. This occurred during trade union elections, which ended on 19 October. According to the CGT, four of the persons concerned featured on one of the two lists of candidates for nomination to the executive committee of the trade union. B. The Government's reply 268. Referring to the dismissal of Marcelino Manuel Uribe, the Government forwarded a letter from the undertaking where he worked, stating that the reason for the dismissal was undisciplined behaviour in the undertaking, to the extent that "as regards the incidents occurring in April and the would be strike of May 1984, this person was one of the instigators of that strike ... the said person is not a member of any trade union organisation". According to the Government, Mr. Uribe was dismissed under section 69 of the Labour Code. 269. The Government also states that the management of the "Porvenir" sugar plantation and the CGT reached satisfactory agreements on the matters referred to in the complaints. 270. The Government states in addition that Elías Adames Boyer and Alfonso Sánchez were not dismissed due to trade union activities. The former was dismissed for failing to discharge satisfactorily the duties for which he had been engaged. The latter was reinstated when it was determined that the reason for his dismissal was not sufficiently valid. 271. As regards the dismissals in the ONATRATE, the Government states that some dismissals did in fact take place owing to the change in management, as a result of the administrative reorganisation of the office, but in no case did they relate to trade union activities, as is proved by the fact that most of the persons dismissed did not belong to the trade union operating in ONATRATE. C. The Committee's conclusions 272. The Committee notes that the parties to the collective dispute which occurred in the "Porvenir" sugar plantation have reached an agreement which is satisfactory to both parties. The Committee also notes that trade union leader Alfonso Sánchez has been reinstated in the Río Haina sugar plantation. Lastly, the Committee takes note of the Government's explanations concerning the dismissals which took place in the ONATRATE. 273. On the other hand, the Committee observes that, according to the Government, the trade union leader Elías Adames Boyer was dismissed for failing to discharge satisfactorily the duties for which he had been engaged. In this respect, the Committee regrets that the Government has not provided more precise information on the specific reasons why the work of this trade union leader was considered unsatisfactory. In addition, the Committee observes that, as regards the dismissal of Marcelino Manuel Uribe, the Government has forwarded a letter from the undertaking where this person worked, indicating that his dismissal was directly linked to "the incidents occurring in April and the would-be strike of May 1984", of which he was "one of the instigators". The Committee also observes that Mr. Uribe was dismissed under section 69 of the Labour Code, that is, without a reason being given. In these circumstances, the Committee regrets that Mr. Uribe was dismissed for carrying out trade union activities, thereby infringing Article 1 of Convention No. 98. It draws the attention of the Government to the principle that it does not appear that sufficient protection against acts of anti-union discrimination - as set out in Convention No. 98 - is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law in cases of unjustified dismissal, to get rid of any worker when the true reason for dismissal is his trade union membership or activities. [See, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163.] The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case. The Committee's recommendations 274. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) The Committee notes that Marcelino Manuel Uribe was dismissed for carrying out trade union activities, thereby infringing Article 1 of Convention No. 98. (b) The Committee draws the attention of the Government to the principle that it does not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law in cases of unjustified dismissal, to get rid of any worker when the true reason for the dismissal is his trade union membership or activities. (c) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case. Case No. 1306 COMPLAINT SUBMITTED BY THE INTERNATONAL CONFEDERATION OF ARAB TRADE UNIONS AGAINST THE GOVERNMENT OF MAURITANIA 275. The Committe has already examined this case at its meeting in February 1985 when it submitted an interim report which was approved by the Governing Body. [See 238th Report, paras. 298-311, February-March 1985.] Since then, the Government has sent the ILO 1985 a certain amount of information on the case in two telegrams, dated 28 April and 13 May. At its May 1985 meeting, the Committee adjourned its examination of the case and requested the Government to supply additional details. 276. Mauritania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 277. The International Confederation of Arab Trade Unions (ICATU) submitted allegations concerning the arrest of officials and trade union activists of one of its affiliates, the Union of Mauritanian Workers (UTM), including that of the organisation's General Secretary El Kory Ould Hmeity, and the death as a result of ill-treatment and torture of Sidi Mohamed Ben Aiat, who held the post of director of the commercial department of the Fuel Company. 278. The Government replied that the trade unionists cited in the complaint were accused of undermining the security of the State by having acted in collusion with a foreign diplomatic mission but failed to specify the precise acts with which they were charged. The Government did not reply to the allegation concerning the death of Sidi Mohamed Ben Aiat as a result of ill-treatment. 279. In these circumstances, the Committee requested the Government at its February 1985 meeting to submit detailed information on the specific facts which led to the arrest of the UTM officials and to state if legal proceedings were being taken against them. It also requested the Government to reply to the allegations concerning the death of a union official as a result of ill-treatment. 280. In a later communication dated 20 February 1985, the General Secretary of the UTM, El Kory Ould Hmeity, thanked the ILO on behalf of the Mauritanian trade unionists for its defence of members of trade unions subjected to ill-treatment of every kind. 281. In telegrams sent on 28 April and 13 May 1985, the Government stated that all the imprisoned trade unionists had been released under a political amnesty granted on 2 December 1984 and that Sidi Mohamed Ben Aiat had died from an illness. 282. At its May 1985 meeting, the Committee decided to postpone its examination of the case as the Government's observations had reached it very late. However, in view of the seriousness of the allegation concerning the death under torture of a trade union official, it urged the Government to supply additional details on the circumstances surrounding the death of Sidi Mohamed Ben Aiat and to indicate whether an independent inquiry into the matter had taken place. In accordance with normal procedure, the Office transmitted the Committee's request to the Government. 283. In a communication dated 13 June 1985 the Office informed the International Confederation of Arab Trade Unions that consideration of the case had been postponed and notified it that the Government claimed in a telegram sent on 13 May 1985 that Sidi Mohamed Ben Aiat had died from an illness. The Office therefore asked the complainant for further details in this regard. There has since been no reply from the complainant. 284. On 22 August 1985 the Office sent a telegram to the Government of Mauritania requesting it again to comment on the case, but no reply has yet been received. B. The Committee's conclusions 285. The Committee notes that the officials of the Union of Mauritanian Workers arrested in March 1984 were released in December 1984 after being held in custody for eight months without having been tried by an independent and impartial court. 286. The Committee notes from the complainant's allegations that 17 trade union activists and officials suffered from anti-union repression and that one of them died under torture. 287. The complainant has not indicated the grounds for the arrest of the trade unionists. The Government, for its part, states that they were imprisoned on a charge of undermining the security of the State but has not specified the precise acts which they were said to have committed. 288. The complainant has not commented on the Government's claim that Sidi Mohamed Ben Aiat died from an illness even though the Office has specifically invited it to do so. 289. Regarding the large number of trade union activists and officials held in custody without any charges being brought against them, the Committee notes with interest that they have now been released. It nevertheless condemns the imprisonment of union officials for eight months in violation of the fundamental right of trade unionists, like any other person, not to be held in custody unless convicted by an independent and impartial court. 290. Regarding the alleged death of a trade union official under torture, the Committee can only note the Government's reply to the effect that the person concerned died from an illness and the complainant's silence on the matter even though it was invited to comment. The Committee finds itself confronted by two contradictory statements neither of which is supported by evidence. In view of the lack of detail regarding the complainant's allegations and of the clear statement made by the Government, and since the complainant organisation has not taken advantage of its right to submit further information in support of its complaint, the Committee considers that the complainant has not substantiated its allegations. This aspect of the case does not therefore require further examination. The Committee's recommendations 291. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) The Committee notes that the trade union officials and activists who had been arrested have now been released. It nevertheless condemns the holding of union officials in custody for eight months without their having been convicted by an independent and impartial court. (b) In view of the contradictory versions concerning the circumstances of the death of a trade union official submitted by the complainant and by the Government, the Committee considers that this aspect of the case does not, therefore, require further examination. Case No. 1317 COMPLAINT PRESENTED BY THE INTERNATIONAL ORGANISATION OF EMPLOYERS AGAINST THE GOVERNMENT OF NICARAGUA 292. The complaint is set forth in a communication from the International Organisation of Employers (IOE) dated 19 December 1984. The IOE transmitted additional information in a communication dated 27 December 1984. The Government replied by a communication dated 27 May 1985. 293. Nicaragua 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 294. The complainant states that the ILO convened in Mexico, from 3 to 7 December 1984, an important seminar to which representatives of employers' organisations in Latin America were invited in order to discuss in particular the role of employers' organisations in the creation of jobs. Mr. Enrique Bolaños Geyer, the Chairman of the Supreme Council of Private Enterprise in Nicaragua (COSEP), announced that he would participate. 295. According to the complainant, Mr. Bolaños, taking his passport which, as a precaution, he had photocopied and which two Managua notaries had reported intact, presented himself at the passport checking window of Managua airport on 17 November 1984, i.e. 16 days before the opening of the seminar. He was forbidden to leave the country because a page was missing from his passport; a page had in fact been torn out of the document. 296. The complainant states that, at the request of the other participants who had announced that they would participate in the seminar, the Director-General of the ILO addressed to the Minister for Foreign Affairs, on 20 November 1984, a telegram asking the Minister to intervene in order to facilitate the departure of Mr. Enrique Bolaños Geyer, the Chairman of the COSEP, from Nicaragua so as to enable him to participate in the seminar in question. According to the complainant, this message remained unanswered. Hence Mr. Bolaños Geyer was unable to obtain a new passport, in place of the one which had been mutilated, in time to attend the ILO meeting in Mexico. 297. The complainant adds that on 3 December 1984 the International Organisation of Employers and approximately 40 participants in the seminar addressed a telegram to the Co-ordinator of the Sandinist Junta regretting with consternation that, despite the message from the Director-General of the ILO, Mr. Bolaños had been forbidden to leave the country in order to attend the seminar, protesting at the violation of freedom of association and of fundamental rights which this entails, and requesting as a matter of urgency that Mr. Bolaños be permitted to participate in the seminar. This telegram too remained unanswered. 298. In support of its allegations the IOE transmits a letter it received from Mr. Bolaños in which he stated that, on 17 November 1984, migration officials removed pages 11 and 12 and pages 21 and 22 from his passport and then proceeded to cancel the passport. Attached to the letter is a photocopy of all the pages of Mr. Bolaños's passport, taken the day before he presented himself to the migration services and bearing, at the foot of the page, a note to the effect that on 16 November 1984 all pages of the passport were complete and properly bound. 299. Furthermore the complainant adds a statement signed by 23 persons at variance with the Sandinist regime and calling themselves "captive dissidents", in which they report that the Sandinist Government has denied them the right to leave the country freely, and arbitrarily prevented them from doing so although there is no legal impediment to warrant such a course. According to the statement, the improper and illegal procedures used to the detriment of the persons referred to include refusal to issue exist visas on the pretext of non-production of documents not required by law, loss of the passport, the existence of higher orders and inclusion in a special list, and invalidation of the passport either by removing or tearing a page from it or by making laterations in it. 300. The statement in question mentions, in addition to the case of Mr. Bolaños and of certain employers' leaders and members of various political parties, the cases of the following persons in particular: NICOLAS BOLAÑOS GEYER: President of UNCAFENIC, Director of Upanica and delegate to the COSEP. He was refused a visa on the grounds that there was a backlog of work. JUAN RAMON AVILES: Executive Secretary of the COSEP. He was refused a visa at the migration offices on the grounds that his date of birth was wrong. FRANCISCO CALDERA: Executive Secretary of Conapro. He was denied the issue of a passport at the migration offices on the grounds that it had been sent to Special Zone No. 1 by unintentional error. ORESTES ROMERO ROJAS: Executive Secretary of the Chamber of Commerce of Nicaragua. His passport was delivered to him without an exit visa on the grounds that one could not be granted to him. FRANK LEY: Director of the Chamber of Commerce. His passport was not delivered to him; he was made to go repeatedly to the migration office and was not given any reply. CARLOS NOGUERA: Delegate of the Nicaraguan Development Institute (INDE) to the Nicaraguan Democratic Co-ordination Body. His passport was held at the migration office on the grounds that there were restrictions on the issue of visas to certain persons. 301. Lastly the IOE reminds the ILO that in 1982 it filed a complaint with the Committee on Freedom of Association alleging that the Government was obstructing the participation of leaders of the COSEP in international meetings (Case No. 1114) and that the Committee felt bound to recall that "representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require". B. The Government's reply 302. The Government states in its communication of 27 May 1985 that, according to information from the Migration and Aliens Directorate, section 16 of the Migration Act, reading as follows, was in fact applied to Mr. Bolaños Geyer: "No passport or identity and travel document which exhibits alterations or corrections and from which pages or covers are missing shall be valid ..." In this connection the Government states that the only restrictions in existence in the country on travel abroad are those expressly laid down in the provisions of law. Furthermore the Government states that it has not imposed gratuitous restrictions on any employer. As evidence of the foregoing it may be reported that, according to the migration registers, the same Mr. Bolaños Geyer has made 14 trips abroad without any obstacle between January 1983 and February 1985 (the Government transmits official certification from the Migration and Aliens Directorate showing 18 departures from the country by Mr. Bolaños between 1981 and 1985). 303. The Government adds that neither have any gratuitous restrictions been imposed on the self-styled "captive dissidents" referred to in the complaint from the complainant organisation. As proof of its assertion, the Government transmits official certification recording the various departures from the country effected in recent years by Mr. Juan Ramón Avilés, Mr. Orestes Romero Rojas and eight more "captive dissidents". C. The Committee's conclusions 304. The Committee observes that in the present case the complainant organisation has alleged the existence of arbitrary restrictions on the right to leave Nicaragua freely. In particular the complainant has referred, firstly, to the case of Mr. Bolaños Geyer, the Chairman of the COSEP, who was unable to attend a seminar organised by the ILO owing to the removal of some pages from his passport and secondly to the case of 23 persons calling themselves "captive dissidents", among whom it refers especially to six leaders of employers' organisations. 305. The Committee further observes that the complainant has not indicated the dates on which these six leaders of employers' organisations were prevented from leaving the country, nor whether such restrictions have obstructed or prevented the pursuit of activities by those persons in their capacity as leaders of employers' organisations. 306. The Committee takes note of the Government's statement that it has imposed no gratuitous restrictions on any employer for travel abroad and that the only restrictions in existence in Nicaragua in that connection are those expressly laid down in the provisions of law. 307. More specifically, with reference to Mr. Bolaños Geyer, the Chairman of the COSEP, the Committee notes that, according to the Government, section 16 of the Migration Act was applied to this employers' leader - who has left the country 18 times between 1981 and 1985 - and that this section provides that "No passport or identity and travel document which exhibits alterations or corrections and from which pages or covers are missing shall be valid ..." In this connection, the Committee regrets that the Government has confined itself to mentioning section 16 of the Migration Act, omitting to comment on the complainant organisation's assertion that migration officials removed the sheet bearing pages 11 and 12 and that bearing pages 21 and 22 from the passport on 17 November 1984 and then cancelled it. The Committee also observes that the Government has not referred either to the complainant's assertion that on 16 November 1984, the day before that on which Mr. Bolaños proposed to leave the country, two notaries were able to report that his passport was intact. 308. The Committee strongly deplores the fact that, after the incident affecting Mr. Bolaños had occurred on 17 November 1984, the authorities did not act on the request made by the Director-General of the ILO on 20 November 1984 that Mr. Bolaños's departure from the country should be facilitated in order to enable him to participate in the seminar organised by the ILO which was to be held in Mexico from 3 to 7 December, that is to say a sufficient number of days after the date on which the incident in question occurred. 309. Having regard to the foregoing considerations, the Committee concludes that the Government has not justified the illegal measures, involving the removal of pages from Mr. Bolaños' passport, which prevented him once again from leaving Nicaragua to attend the seminar organised by the ILO in Mexico. In these circumstances, and having regard also to the fact that the Government has not referred specifically to other leaders of employers' organisations having been forbidden to leave the country or obstructed in doing so - although the complainant has not emphasised that these cases were connected with the pursuit of activities in their capacity as leaders of employers' organisations - the Committee is bound to draw the Government's attention as it has done in the past on several occasions, and particularly in 1983 regarding Mr. Bolaños, to the principle that representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require [see 222nd Report, Case No. 1114 (Nicaragua), para. 71], and that the free movement of these representatives should be ensured by the authorities. 310. The Committee also requests the Government to take steps to ensure that the appropriate authorities do not hinder the participation by leaders of workers' or employers' organisations in activities designed to promote and defend the interests of their members. The Committee's recommendations 311. In these circumstances, the Committee recommends the Governing Body to approve the present report and in particular the following conclusions: (a) The Committee concludes that the Government has not justified the illegal measures, involving the removal of pages from Mr. Bolaños' passport, which once again prevented Mr. Bolaños, the Chairman of the COSEP, from leaving Nicaragua to attend a seminar organised by the ILO in Mexico from 3 to 7 December 1984. (b) In addition, the Committee strongly deplores the fact that the Nicaraguan authorities did not act on the request made by the Director-General of the ILO on 20 November 1984 that Mr. Bolaños's departure from the country should be facilitated in order to enable him to participate in the seminar in question. (c) The Committee draws the Government's attention as it has done in the past on several occasions, particularly in 1983 regarding Mr. Bolaños, to the principle that representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require, and that the free movement of these representatives should be ensured by the authorities. (d) The Committee requests the Government to take steps to ensure that the appropriate authorities do not hinder the participation by leaders of workers' or employers' organisations in activities designed to promote and defend the interests of their members. Case No. 1318 COMPLAINT PRESENTED BY THE GERMAN WORKERS' CONFEDERATION AGAINST THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY 312. On 21 December 1984, the German Workers' Confederation (Deutscher Arbeitnehmerverband - DAV) lodged a complaint against the Government of the Federal Republic of Germany. On 6 February 1985, the complainant submitted additional information in support of its complaint. The Government presented its observations on this complaint in communications dated 23 April and 3 May 1985. 313. The Federal Republic of Germany 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. Allegations of the complainant 314. In its communication of 21 December 1984, the DAV complains of the withdrawal of its capacity to bargain collectively by decisions of several German courts, which resulted in its being deprived of the right to enjoy the special privileges recognised by legislation for trade unions in the labour courts and in the management of enterprises. 315. The complainant, which has approximately 15,000 members, also states that it appeals against the decision of the European Commission on Human Rights of Strasbourg of 3 October 1983, which nonsuited its complaint of alleged violations of Articles 11 (on freedom of association) and 14 (on non-discrimination) of the European Convention on Human Rights. 316. Reviewing the background of the lawsuit which brought it into conflict with the Federation of Workers in Mining and Energy (IG Bergbau-Energie) and the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund - DGB) and several German courts for over ten years, the complainant explains that in 1972 several trade unions affiliated to the DGB brought a lawsuit before the labour courts of Herne for the withdrawal of its capacity to conclude collective agreements, although this capacity had been granted it on 20 March 1962 as a miners' trade union (Bergarbeiterverband - BAV) by the same labour court in Herne. The DAV, then called the BAV, lost this suit. The decision was confirmed by the labour court of the Land of Hann in 1975 on the grounds that the criterion for a trade union organisation to be able to bargain collectively should be that the said organisation should be in a position to apply pressure within the limits of the legal order, i.e. that it should be in a position to make the other party accept collective bargaining. The Federal Labour Court in 1978, then the Federal Constitutional Court in 1981, rejected the appeals lodged by the DAV to regain recognition of its capacity to conclude collective agreements. Specifically, the decision of the Federal Constitutional Court stated that the decision of the Federal Labour Court was constitutional, since the DAV did not fulfil the minimum requirements for obtaining the capacity to conclude collective agreements, and it decided that, as the request only referred to recognition of the capacity to conclude collective agreements, it was not necessary to rule on the question whether "the right of an association to be recognised" guaranteed by article 9 of the Constitution authorised a uniform interpretation of the concept of "trade union" in the Collective Agreements Act and the Works Constitution Act. The DAV considers that this argument of the court is surprising, for it disregards the fact that DAV had expressly requested a ruling on whether it "possessed the status of trade union" in all respects. According to the complainant, this decision resulted in the loss of its status as a trade union under the terms of the Works Constitution Act of 1972. 317. The complainant considers that the negative decision of the Federal Constitutional Court is unjust, since the DAV should possess the status of trade union in all respects. It therefore appealed to the European Commission on Human Rights, which stated that its complaint was ill-founded. However, according to the complainant, the withdrawal of recognition of its status as a trade union, under the terms of the Works Constitution Act, which resulted in the loss of all its trade union rights and the capacity to act, violates the principles of freedom of association. 318. According to the complainant, the members of the DAV are defenceless and exposed to the arbitrary action of the works councils held by the DGB. They are at a disadvantage as regards nomination, transfer, promotion, etc. and as the DAV is not a trade union under the terms of the Works Constitution Act, it is not in a position to protect its members before the labour courts against this kind of discrimination. Neither is it in a position to represent them before the labour courts at the Länder level. 319. The complainant supplied voluminous documentation in support of its complaint, including the following: a pamphlet giving an account of its establishment in the mining sector in 1952; the 1962 court decision granting it the right to bargain collectively in the mining sector; its rules stating that it covers workers in industry, commerce and handicrafts, as well as those employed in the services, both in the public and private sectors; opinions of German jurists supporting its request; a letter prohibiting the DAV from posting notices inside the Volkswagen enterprise in Wolfsburg in 1980 on the grounds that it is not authorised to post notices in the said establishment as it is not recognised as a trade union (this letter informs the DAV representative who posted a notice that, if he continues to post notices and disturb the peace in the enterprise, he will be dismissed without notice); a letter sent in 1976 by a certain Helmut Homan of the Federation of Workers in Mining and Energy (IG Bergbau-Energie), forwarding to the DAV five letters of resignation by workers from the complainant (these resignations are drawn up on printed forms) and another letter of resignation written by a certain Herbert Frase, dated 1983, in which he informed the DAV that it had come to his knowledge that, contrary to the latter's claim, the complainant was no longer a trade union by decision of the Federal Constitutional Court and that he was therefore resigning. 320. The complainant concludes by appealing to the ILO for recognition as a trade union under the terms of the Works Constitution Act of 1972. B. The Government's reply 321. The Government confirms in its reply that the Federal Labour Court, in March 1978, rejected the appeal lodged by the DAV to be granted the status of trade union and the capacity to bargain collectively on the grounds that, for a workers' association to enjoy the status of a trade union and the capacity to bargain collectively, it must carry sufficient weight to put pressure on, and resist pressure from, the opposing party so that negotiations may generally result in a collective agreement (criterion of the capacity of a trade union to obtain the acceptance of its claims). The Government also confirms that the Federal Constitutional Court rejected the appeal of unconstitutionality lodged by the DAV against the decision of the Federal Labour Court in October 1981. 322. According to the Government, the DAV is a workers' association whose purpose is to guarantee and improve the economic and working conditions of its constituents enshrined in section 9(3) of the Basic Law. Therefore, the DAV is free to act as a workers' association and, as such, is free to submit complaints, elect its leadership, lodge appeals and recruit new members, in conformity with the requirements of Convention No. 87. 323. Concerning the compaint that the members of the DAV are subjected to discrimination, the Government explains that section 75 of the Works Constitution Act obliges employers and works councils to ensure that every person employed in the enterprise is treated in conformity with the principles of law and equity and that there is no discrimination against any person, in particular on account of their political or trade union activities or convictions. According to the Government, if a works council neglects its duties or infringes its principles it renders itself liable, under section 23(1) of the Works Constitution Act, to dissolution; likewise an individual member guilty of such acts is liable to removal. 324. As regards the criteria for determining the representativity of a trade union in order to grant it the capacity to bargain collectively, the Government explains that such capacity is only conferred on associations which fulfil the following conditions: they must be autonomous in the negotiation of wage rates and must consequently be in a position to regulate conditions of employment by means of collective agreements and to maintain industrial peace. It is therefore necessary for the association concerned to be able to win acceptance for its claims from the opposing party by reason of the number of its members or by its position of strength in the enterprise. It must also carry enough weight to put pressure on, and resist pressure from, the opposing party so that negotiations can generally lead to the conclusion of collective agreements. 325. The Government recalls that the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations have considered that legislation requiring that a trade union be representative or competent in order to be able to bargain collectively is not contrary to the principle of freedom of association if the determination of the trade union in question is based on objective and pre-established criteria. According to the Government, German legislation fulfils these conditions. It adds that the decision to grant an association the capacity to bargain collectively is a matter for the labour courts and the DAV must apply again to the courts for recognition of its capacity to bargain. 326. The Government also states that, under the terms of the Labour Courts Act, independent associations of workers organised for social or occupational purposes may bring their disputes before the labour courts or be represented by lawyers. It also includes with its reply extracts from the decision of the Federal Labour Court of 14 March 1978 and from the decision of the Federal Constitutional Court of 20 October 1981. 327. At the same time, the DGB sent its observations on this case at the Government's request. It considers that the right to set up organisations for the purpose of defending and promoting the economic and working conditions of every worker in every industry and in every occupation is guaranteed by the Constitution of the Federal Republic of Germany. According to the DGB, the DAV is a workers' association which enjoys the rights enshrined in Articles 2 and 3 of Convention No. 87; that association states that it has existed for 30 years and has 14,000 members throughout the country. No one prohibits it from carrying on its activities independently and from representing the interests of its constituents vis-à-vis their employers, affirms the DGB. 328. Concerning the discrimination alleged to have been suffered by members of the DAV in enterprises where the works councils are held by other trade union organisations, the DGB considers that, even if this were true, it would not prove that the Federal Republic of Germany violated Convention No. 87. The Convention prohibits the public authorities from interfering in matters of freedom of association but it contains no provision on the behaviour to be adopted between workers who are members of rival organisations. The DGB regrets that the DAV merely stated in general terms that its members were defenceless and at the mercy of works councils held by the DGB, and affirms that this allegation is unfounded. 329. The DGB further reiterates the information supplied by the Government concerning the Works Constitution Act, which obliges works councils to ensure that no "person employed in the establishment" is subjected to anti- union discrimination, and which also provides that any infringement in this respect would incur dissolution of the works council or removal of the individual member guilty of such acts. 330. The DGB also reiterates the information supplied by the Government as to the difference between a trade union with the capacity to bargain collectively and a workers' association, and recalls that disputes on this matter are settled by the courts on the basis of objective pre-established criteria, i.e. the ability to put pressure on the opposing party and to resist such pressure from the opposing party by reason of the number of its members or its position of strength in labour relations. However, continues the DGB, as was admitted by the DAV, this association numbers 14,000 members throughout all the industrial and economic sectors of the country, while the DGB comprises 17 trade unions in the same sectors, with 8 million members. In other words, the representativity of the DAV is particularly weak. 331. The DGB adds that the DAV has never signed any collective agreement, as was pointed out by the Federal Labour Court, but would like to be recognised as a trade union with the capacity to bargain collectively so as to give workers the impression that it is in a position to regulate their working conditions by obtaining the establishment of legal provisions within the German collective agreement system which would override the statutory provisions, and that it does so, which is not the case. Nevertheless, according to the DGB, no one prevents the DAV from submitting complaints to the opposing party or concluding collective agreements, but a workers' association must be in a position to do so itself in full autonomy, and cannot demand that its capacity in this respect, which is not borne out by the facts, be confirmed by a court. 332. The DGB concludes that Conventions Nos. 87 and 98 have not been infringed by the Federal Republic of Germany which, like other member States of the ILO, only grants the capacity to bargain collectively to representative or competent trade unions. C. The Committee's conclusions 333. The Committee observes that, in the present case, the complainant has opposed a decision of the European Commission on Human Rights of Strasburg and stated that it was lodging an appeal with the ILO against the said decision. The Committee, not being competent to examine the decisions of other international or regional bodies, considers that this aspect of the complaint is not receivable under the terms of the procedure in force. 334. As regards the substance of the case, the Committee observes that it essentially involves a question of legal recognition of the status of a trade union with the capacity to conclude collective agreements and the negative consequences which the loss of such recognition entails. 335. The Committee has always considered that it is not necessarily incompatible with Article 3 of Convention No. 87 (according to which workers' and employers' organisations have the right to organise their administration and activities and formulate their programmes without interference by the public authorities) to provide for the issuance of a certificate to the most representative trade union recognising it as an exclusive bargaining agent. [See the Committee on Freedom of Association, 67th Report, Case No. 303 (Ghana), paras. 291 and 292.] 336. Nevertheless, the Committee has pointed out on several occasions that where, according to the system in force, the most representative trade union enjoys preferential or exclusive bargaining rights, it is important that this trade union be determined on the basis of objective and pre-established criteria in order to rule out any possibility of partiality or abuse. [See the Committee on Freedom of Association, 92nd Report, Case No. 376 (Belgium), para. 31; 109th Report, Case No. 533 (India), para. 101; 202nd Report, Case No. 949 (Malta), para. 278; and 208th Report, Case No. 981 (Belgium), para. 113.] 337. In the case under consideration, the Committee observes that the labour courts, including the highest court of the Federal Republic of Germany, ruled on the basis of objective and pre-established criteria. The Committee has taken note, in particular, of the decision of the Federal Labour Court of 14 March 1978 stating that the number of members of the DAV and the structure of its organisation are insufficient for it to be recognised as a trade union. The distribution of its members is very dispersed and it holds no key position in any sector. In addition, its administration is inadequate to enable it to carry on negotiations in areas as important as mining and energy. The Committee also observes that, as had been admitted by the DAV, this workers' association only has 14,000 or 15,000 members in all sectors of the economy throughout the country. The DGB, on the other hand, numbers 8 million workers in all sectors throughout the country. 338. In these circumstances, the Committee considers that the non-recognition of the complainant as a trade union with the capacity to conclude collective agreements, ruled by court decision, does not infringe the principles of freedom association, the more so because this federation could apply again to the court for recognition of its capacity to bargain if the situation changed. 339. As regards the negative consequences entailed by the loss of this recognition and, in particular, the prohibition on posting notices, incitements to resign from the DAV on the grounds that this workers' association is no longer a trade union, and the allegations of discrimination against members of the DAV, the Committee points out the importance which it attaches to the fact that the public authorities should guarantee that non-recognition of a worker organisation's capacity to bargain does not result in that trade union forfeiting the other rights which the minority workers' association and its members should enjoy and the Government should protect the activities that even a minority workers' association should be able to carry on in order to further and defend the interests of its constituents in accordance with Convention No. 87. The Committee's recommendations 340. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee considers that the withdrawal of the status of a trade union with a capacity to conclude collective agreements from the complainant by court decision on the basis of objective and pre-established criteria does not run counter to the principle of freedom of association. The Committee therefore considers that, on this point, there has been no infringement of freedom of association. (b) However, the Committee draws the attention of the Government to the fact that the public authorities must ensure that the withdrawal in question does not result in this minority workers' association and its members forfeiting the other rights which they should be able to enjoy in accordance with Convention No. 87. Case No. 1323 COMPLAINTS PRESENTED BY THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES AND THE KILUSANG MAYO UNO AGAINST THE GOVERNMENT OF THE PHILIPPINES 341. The International Confederation of Free Trade Unions (ICFTU) presented a complaint of violations of trade union rights against the Government of the Philippines on 7 March 1985. The Trade Unions of the Philippines and Allied Services (TUPAS) also addressed a complaint against the Government in communications dated 13 and 29 May 1985, as did the Kilusang Mayo Uno (KMU) in a communication dated 8 June 1985. The Government sent its observations in communications dated 30 May, 14 June and 26 August 1985. 342. The Philippines have 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); they have not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151). A. The complainants' allegations 343. In its communication of 7 March 1985, the ICFTU states that it is greatly concerned about restrictions relating to the right to strike, the requirements for the registration of trade unions, the powers of inquiry conferred on the Department of Labour in respect of the financial management of unions and the harassment, arrest and detention of trade unionists in the Philippines. This has been reflected in the observations of the ILO Committee of Experts on the Application of Conventions and Recommendations and by the Committee on Freedom of Association in its conclusions concerning Cases Nos. 1157 and 1192. In particular, the ICFTU alleges an additional infringement of trade union rights by the Government, namely the denial of the right to organise in the public sector. According to the ICFTU, while section 244 of the Labour Code guarantees the right to "self-organisation" to workers in commercial, industrial and agricultural enterprises, the workers in government and local government services, as well as workers in government-owned or controlled corporations - covered by the Civil Service Law and Rules - are excluded from the right to organise in trade unions. This, states the ICFTU, results in a situation where a substantial proportion of Filipino workers are without the protection and means for the furtherance of their interests by trade union organisations. 344. In its communication of 13 May 1985, the TUPAS alleges that recent legislation on strikes and lock-outs - Letter of Instruction No. 1458 promulgated on 1 May 1985, a copy of which is supplied - weakens concerted actions, strikes and picketing by workers, and is in violation of ILO Conventions. 345. In its communication of 29 May 1985, the TUPAS states that, although Letter of Instruction No. 1458 has not at present been implemented, it is contrary to the ILO Conventions on freedom of association for the following reasons: (1) it states that any assumption of jurisdiction by the President or Minister of Labour shall be immediately executory even if such action is under appeal to the Supreme Court; (2) it empowers the Minister of Labour to authorise the employer to hire replacement labour; (3) the police and military may be used for the immediate execution of orders even if the Supreme Court should subsequently declare the action of the Minister void. 346. In its communication of 8 June 1985, the KMU first alleges that the following labour leaders were arrested on 13 August 1982 and remain detained by the military authorities: Romeo Castillo, Cesar Bristol, Danilo Garcia, Herminia Ibarra (all detained at Military Camp Bagong Diwa), Millet Soriano, José Britanico, Simplicio Anino, Lauro Pabit (all detained at Military Camp Crame), Ceferino Pineda, Antonio Cabrera, Renato Yineda, Roberto Ramos and Noel Maglalang (all detained at Military Camp Olivas). According to the KMU, they were charged with offences which they have not committed. 347. Secondly, the KMU alleges that the major labour laws are repressive and violate the ILO Constitution and freedom of association Conventions. For example, freedom of association and the right to collective bargaining are restricted in the following circumstances: (a) government employees, including employees working in quasi-public corporations, are not allowed to organise as labour organisations and are prohibited from declaring a strike or engaging in other concerted activities. Their security of tenure and other terms and conditions of employment are governed by the Philippine Civil Service Laws which are unilaterally imposed by the Government. Prior to martial law in the Philippines, the rights of public employees to organise in quasi-public corporations had been recognised; (b) workers in the following industries are allowed to organise labour unions but are prohibited from declaring a strike or engaging in concerted activities pursuant to section 264(g) of the Labor Code, Legislative Resolution No. 473 and Executive Order No. 815: export-oriented industries, semi-conductor business, public utilities, companies engaged in the generation or distribution of energy, banks and hopsitals; (c) the following are not allowed to unionise: private security guards, personnel employed by the employers for the protection and security of their person, properties and the factory, managerial employees, casual, probationary and temporary employees, apprentices, learners and contractual workers. 348. The KMU alleges in this connection that freedom of association is curtailed by the Government by not according to a labour organisation the status of a legitimate labour organisation unless it registers with the Ministry of Labour and Employment. For example, KMU is refused recognition by the Government because it is not a registered labour centre despite clear and unequivocal acceptance by the Filipino workers of its legitimacy. Moreover, undue delays in the handling of union representation cases affects the rights of the workers to form an association. For example, a simple election case can last for more than one year thereby frustrating the free choice of bargaining agents. Related to this are the stringent requirements imposed by the Government for the registration of labour unions (section 234 of the Labour Code) and labour federations and national unions (section 237 of the Labour Code: a labour federation or national union cannot be registered unless the applicant presents proof that ten local unions with collective bargaining agreements are affiliated to the federation). 349. The KMU also refers to section 6 of Presidential Decree No. 1391 by which workers are prohibited from changing their bargaining agent during the life of a collective bargaining contract which is fixed at three years. Consequently, even if the bargaining agent selected no longer enjoys the trust and confidence of the workers, the latter have to wait for three years before the bargaining representative could be changed. 350. The KMU next refers to section 4(f) of Rule III of the Rules Implementing Presidential Decree No. 1391 which reads: "... No person who is not an employee or worker of the company or establishment where an independently registered union, affiliate, local or chapter of a labour federation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter." This rule, according to the KMU, prohibits a person not employed by the company from becoming a union officer. 351. According to the KMU, freedom of association is also violated by the Government because it is empowered by law (sections 238, 239 and 240 of the Labour Code) to cancel the registration certificates of labour unions for the following reasons: fraud in connection with the ratification of the union's constitution; failure to submit the founding documents within 30 days from their adoption; fraud during elections or failure to submit election information within 30 days of the election; failure to submit annual returns within 30 days of the close of the financial year; engaging in any activity prohibited by law; entering into collective agreements setting conditions of employment below the minimum legal standards; asking for or accepting special fees from employers or union members; failure to submit membership lists at least once a year. 352. Lastly, the KMU alleges that from January to May 1985 there has been an upsurge in trade union repression, involving the death of at least nine workers while actively representing their unions. This complainant states that on 1 May 1985 the President issued Letter of Instruction No. 1458 which provides for the immediate involvement of the military in picket lines. It claims that the use of fanatic groups, para-military and direct military intervention in strike situations is obvious. 353. The KMU attaches to its communication a voluminous petition containing further details regarding alleged violations of Conventions Nos. 87 and 98 and requesting the ILO to instruct the Government to stay the implementation of Labour Laws Nos. 130 and 227, Executive Order No. 815, Resolution No. 473 and Letter of Instruction No. 1458. In addition to repeating the detailed allegations listed above, the petition refers specifically to undue employer and government interference in the internal activities of unions by requiring a majority of two-thirds votes before concerted action can be authorised and by permitting their representatives to attend and/or supervise union meetings. 354. According to the KMU petition, rather than heed the criticisms of several international bodies, the Government issued Letter of Instruction No. 1458. This legislation was used to put down a strike by 800 employees of the Filipinas Synthetic Fiber Corporation at Santa Rosa, Laguna, with resulting injuries to 70 strikers. While this legislation requires the employer to comply with a return-to-work order, the KMU alleges that some do not immediately reinstate striking employees, e.g. Baxter Travenol, Allied Banking Corporation, Blue Bar Coconut and the Producers Bank. In addition, while the Letter of Instruction requires the payment of back wages to striking employees, the Minister of Labour does not order such repayment. 355. The KMU also attaches to its complaint a copy of a petition it presented on 10 June 1985 to the Supreme Court of the Philippines requesting the issuance of a temporary restraining order against implementation of Letter of Instruction No. 1458 until the Court can decide that it is invalid and unconstitutional. B. The Government's reply 356. In its communication of 30 May 1985, the Government explains that although both private sector and government employees are guaranteed the right to association, government employees performing governmental functions were in the past the only group not allowed to engage in concerted activities. When the situation emerged where employees of government-owned or controlled corporations engaged in proprietary functions received wages and benefits far higher than their counterparts in the various branches of Government, it was decided to include such employees within the ambit of the Civil Service Act of 1959. As a result of debates on this point during the adoption of the 1973 Constitution, section 1, Article XII-B, was passed, placing these employees under the Civil Service Act and providing that compensation of all government employees shall be standardised by the National Assembly. The Government points out that section 277 of the Labour Code incorporated the constitutional provision in the following terms: The terms and conditions of employment of all government employees, including employees of all government-owned or controlled corporations shall be governed by the Civil Service Law, rules and regulations. Their salaries shall be standardised by the National Assembly as provided for in the new Constitution. However, there shall be no reduction of existing wages, benefits, and other terms and conditions of employment being enjoyed by them at the time of the adoption of the Code. 357. According to the Government, the phrase "government-owned or controlled corporations" has been interpreted by the Secretary (now Minister) of Justice and the National Labour Relations Commission (NLRC) of the Ministry of Labour and Employment as contemplating only those created by charter or by special laws or decrees. It does not include corporations incorporated or organised under the Corporation Code of the Philippines and motivated wholly for profit and the promotion of private interests. Hence, eventual government takeover through the acquisition of a controlling bloc of shares does not affect existing unions and collective bargaining agreements within the undertaking. 358. The Government stresses that there is no law in the country that restricts the right to organise of government employees. On the contrary, the right to organise is guaranteed by the Constitution. Thus, in a case filed by the Alliance of Government Workers in 1983, the Supreme Court ruled: ... Our dismissal of this petition should not, by any means, be interpreted to imply that workers in government-owned and controlled corporations, or in state colleges and universities, may not enjoy freedom of association. The workers whom the petitioner purports to represent have the right, which may not be abridged, to form associations or societies for purposes not contrary to law. This is a right they share with all public officers and employees and, in fact, by everybody living in this country. But they may not join associations which impose the obligation to engage in concerted activities in order to get salaries, fringe benefits, and other emoluments higher than or different from that provided by law and regulations. That government employees can and do form associations of their own choosing to promote and protect their collective interests is evidenced by such organisations as the Philippine Government Employees' Association (PGEA), the Alliance of Government Workers (AGW), the Philippine Public School Teachers' Association (PPSTA), the Labor Arbiters' Association of the Philippines, Inc. (LAAPI), the Philippine Veterans Bank Employees' Union (PVBEU) and various co-operatives and trade organisations in the public sector. 359. Referring to the alleged limitation on the exercise of the right to strike in government-owned and controlled corporations, the Government explains that prior to the promulgation of the 1973 Constitution, employees of such corporations performing proprietary functions could join a union that imposed the duty to strike and other similar concerted actions. In practice, however, labour disputes involving government-owned or controlled corporations were considered imbued with national interest and were often recommended by the then Secretary of Labour to be certified by the President to the Court of Industrial Relations for compulsory arbitration under the legislation then in force. The Government states that the constitutional provision is not absolute in that it refers only to those corporations with special charters. Thus, corporations organised by the Government or those incorporated under the Corporation Act continue to enjoy the right to collective bargaining and concerted activities. Among these corporations are the Philippine Airlines, Petrophil and Hyatt Regency Hotel, in which their employees are not only unionised, but also have existing collective agreements with them. 360. According to the Government, the rights and interests of government workers are protected by Executive Order No. 895 of 1 May 1983. This directive provides for the creation of an Employee-Management Committee in every government-owned or controlled corporation and an Employee-Management Consultative Council in the Civil Service Commission. The Government recognises that the formation of these bodies is crucial in view of the limitations on the right to bargain collectively regarding wages and strike actions. Executive Order No. 895 aims at fostering closer and more harmonious employer-employee relations in government-owned or controlled corporations. The Committee and the Council are intended to improve the existing framework for the expeditious settlement of grievances and in providing a forum for regular and meaningful dialogue between the parties. " Grievances" as used in Executive Order No. 895, are defined as problems arising from physical working conditions, placement of employees, work distribution, performance appraisal, arbitrary actions, lay-offs and transfers, selection and promotion and other matters that may give rise to employee dissatisfaction. The rules governing operation of the employee-management committees provide that these shall be composed of equal representation of managment and workers. The Council, on the other hand, shall be composed of permanent representatives from the Employee-Management Committee which has referred a grievance to the Council and a representative from the ministry and agency to which the corporation involved is attached. 361. The Government admits, however, that despite the administrative and judicial pronouncements regarding the right to self-organisation, some sectors continue to call for clarificatory legislation. In view of this, Parliamentary Bill No. 4962 was filed on 25 February 1985 proposing several amendments to the Labour Code. Among the proposed amendments is a provision which, while still prohibiting strikes in the public sector, recognises the right of this class of employees to bargain collectively with their employers and seeks to extend to them the same rights and privileges enjoyed by private sector employees. A current review is also being undertaken by the Cabinet in line with the Supreme Court decision on the matter. 362. To its communication dated 14 June 1985, the Government attaches a copy of the "Guide-lines to implement Letter of Instruction No. 1458" dated 31 May 1985. The "Guide-lines" include safeguards such as exhaustion of conciliation or mediation before certifying the dispute to the National Labour Relations Commission for compulsory arbitration, the right to peaceful picketting and a restriction on the role of law enforcement authorities in labour disputes. 363. In its letter of 26 August 1985, the Government first observes that many of the issues raised in the present complaint have already been examined by both the Committee on Freedom of Association and the Committee of Experts; it accordingly refers to its past replies on these issues. 364. The Government states that, on 20 August 1985, Millet Soriano, Simplicio Anino, Lauro Pabit and José Britanico were released from detention on bail. They are being tried for conspiracy to commit rebellion or insurrection, illegal possession of explosives and violation of Presidential Decree No. 33. The Government also states that, according to documentation at the Ministry of National Defence, the other militant labour leaders were arrested not for legitimate trade union activity but for subversive and illegal acts; they are charged with illegal possession of firearms and ammunition and incitement to sedition, rebellion or insurrection. 365. As regards the allegations concerning the labour legislation, the Government points to the following recent developments: - the first meeting, on 20 February 1985, of the Tripartite Discussion Series on Labour and Employment Issues, during which the KMU, TUPAS and other workers' organisations were able to present their recommendations on the subject of arbitration to be included in the Ministry's Study Team review of labour laws, which is expected to hand down its final recommendations very soon; - a public hearing, on 8 August 1985, on a draft bill (No. 4962) to amend the Labour Code incorporating some of the provisions referred to by the Committee of Experts; - a National Tripartite Conference, to be held in September 1985, to discuss all possible amendments to labour legislation. 366. More particularly, the Government explains that Letter of Instruction No. 1458 was prompted by the open defiance of both labour and management sectors of lawful orders issued by the Ministry of Labour. Although issued in good faith by the Government, it is being included in the on-going review of labour relations laws in view of the varied reactions from both labour and management. C. The Committee's conclusions 367. The Committee notes that four of the labour leaders listed by the KMU have been released from detention on bail pending trial on charges unrelated to their trade union functions or activities. Given that the complainant did not attempt to link these arrests to the trade union activities of those concerned and merely referred to "an upsurge of trade union repression involving the death of at least nine workers" without supplying further details, the Committee considers that this aspect of the case does not call for further examination. 368. Voluminous detail was provided by both sides on the alleged legislative violations of Conventions Nos. 87 and 98. The ICFTU and KMU allege that public employees covered by the Civil Service Law and Rules are excluded from the right to organise in trade unions, cannot bargain collectively or strike. The Government explains why civil servants and employees of government-owned or controlled corporations are subject to the same restrictions and points out that the latter (as well as teachers), by virtue of a Supreme Court ruling, may join associations which do not impose the obligation to strike. They can also discuss working conditions and grievances through the Employee/Management Consultative Council. The Government also points out that a distinction has been made whereby employees of those para-public corporations not set up by special charter continue to enjoy the right to bargain collectively and strike in the same manner as private sector workers. 369. The Committee notes that the Committee of Experts, commenting on the question of the right to organise of public employees, has stated that, since they do have the right to form associations under the Civil Service Law, they are therefore not denied the rights guaranteed by Article 2 of Convention No. 87. Problems, however, arise under Convention No. 98 in that freedom to bargain collectively is restricted for a very broadly defined group of public servants. As has been pointed out to the Government in comments by the Committee of Experts under Convention No. 98 since 1981, Article 4 thereof concerning the encouragement and promotion of collective bargaining applies both to the private sector and to public undertakings and bodies, it being possible under Article 6 to exclude from such application only public servants engaged in the administration of the State, i.e. civil servants employed in various capacities in government ministries and other comparable bodies. The Committee accordingly trusts that the current high-level revision of the labour laws will take this principle into account and requests the Government to keep the Committee of Experts on the Application of Conventions and Recommendations informed of developments as regards permitting public employees in both para-public corporations set up by charter and non-civil-service posts to negotiate their terms and conditions of employment. 370. A related issue is raised by the KMU which refers to various Labour Code restrictions on private-sector unionisation (e.g., it is not available for private security guards, managerial employees, casual, probationary, temporary and contractual workers) and on the right to strike in the private sector (prohibited in export-oriented industries, semi-conductor business, public utilities, banks, hospitals). The Committee recalls that the Committee of Experts, in its 1981 observation concerning the Philippines' application of Convention No. 87, noted the Government's explanation that security staff have para-military status and are required to undergo pre-employment training under the direct supervision of the Philippine Constabulary. At the same time the Committee of Experts noted the restrictive definition of "managerial employee" and did not pursue the matter since such employees were free to form their own organisations for purposes other than for collective bargaining. The Committee observes, as regards casual or probationary workers, that there is no specific provision in the Labour Code (1985 Consolidation) denying apprentices or learners the right to join a union. Moreover, section 244 of the Code specifically recognises the right of "ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers" to form labour organisations. The Committee accordingly considers that this aspect of the case does not call for further examination. 371. The ban on the right to strike in some private sector activities has, however, been criticised by this Committee and the Committee of Experts in the past. Although the 1985 observation by the Committee of Experts under Convention No. 87 noted that legal strikes had in practice taken place in banks, electric industries and export-processing zones, the Government's attention was again drawn to the principle that strikes can only be restricted or prohibited in respect of the civil service or essential services in the strict sense of the term, i.e. where the interruption of such activities would endanger the life, personal safety or health of the whole or part of the population. The Committee again trusts that the current review of labour legislation will result in amendments being adopted in the light of the foregoing principle to limit the excessive restrictions on the right to strike. 372. As regards the KMU's further criticisms of labour legislation (too detailed regulation of registration of labour unions and federations; three-year limit for changing a bargaining agent; ban on holding union office on a person not belonging to the company involved; wide range of reasons for the cancellation of registration certificates; the two-third vote requirement for strike action), the Committee recalls once again that the ILO supervisory bodies have previously criticised these restrictions and has called for their amendment. The Committee can only reiterate this request, and hopes that these points will be considered during the current review referred to above. 373. Lastly, as regards Letter of Instruction No. 1458 of 1 May 1985, the Committee notes that, according to one complainant, it has not as yet been used and that the Ministry of Labour has issued "Guide-lines" emphasising voluntary settlement of labour disputes before referral to compulsory arbitration and restricting the role of law enforcement authorities. Moreover, the "Guide-lines" provide for the specification of legal sanctions in the event of failure to comply with an arbitration order, such as non-payment of back wages. The Committee attaches great importance to the "Guide-lines" of the Ministry of Labour and emphasises that any hasty decision to refer disputes to compulsory arbitration is not in conformity with these "Guide-lines". It observes that the Government has responded to the varied reactions from labour and management to this Letter of Instruction by including it in the current review of labour relations laws. The Committee requests the Government to keep the Committee of Experts informed of any developments concerning this legislation. The Committee's recommendations 374. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) Given the lack of detail on and substantiation of the alleged arrest of several labour leaders for trade union activities, the Committee considers that this aspect of the case does not call for further examination. (b) As regards the legislative aspects of this case, the Committee recalls the conclusions of the Committee of Experts on the Application of Conventions and Recommendations to the effect that public servants do have the right to form associations under the Civil Service Law, but that the restriction on the right to bargain collectively placed on such public employees goes beyond the exclusion permitted by Article 6 of Convention No. 98. (c) In view of the conclusions reached by the Committee of Experts on the alleged restriction of freedom of association for private security guards, managerial employees and casual and probationary employees, the Committee is of the opinion that this aspect of the case does not call for further examination. (d) As regards the ban on the right to strike in certain private sector activities, the Committee once again draws the Government's attention to the principle that strikes can only be restricted or prohibited in respect of the civil service or essential services in the strict sense of the term. (e) As regards the remaining criticisms in the current labour legislation as well as Letter of Instruction No. 1458, the Committee notes that a high-level review of labour relations legislation is presently under way and that a draft bill is before Parliament incorporating some of the provisions referred to by ILO supervisory bodies. The Committee trusts that this review will take into account all the comments of the supervisory bodies. (f) The Committee draws the legislative matters raised in subparagraphs (b), (d) and (e) of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations and hopes that the Government will keep that Committee informed of developments concerning the labour laws as a whole. Case No. 1324 COMPLAINTS PRESENTED BY THE WORLD CONFEDERATION OF ORGANISATIONS OF THE TEACHING PROFESSION, THE ADMINISTRATIVE AND CLERICAL OFFICERS' ASSOCIATION, AGE, THE AUSTRALIAN COUNCIL OF TRADE UNIONS AND THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (4TH DIVISION OFFICERS) AGAINST THE GOVERNMENT OF AUSTRALIA/NORTHERN TERRITORY 375. The World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint of violations of trade union rights against the Government of Australia/Northern Territory in communications dated 21 March and 7 May 1985. The Administrative and Clerical Officers' Association, AGE (ACOA), the Australian Council of Trade Unions (ACTU) and the Australian Public Service Association (4th Division Officers) (APSA) sent similar complaints in communications dated, respectively, 23 April and 7 June, 9 May and 11 June 1985. The Government replied in a letter dated 26 August 1985. 376. Australia 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); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151). A. The complainants' allegations 377. In its letters of 21 March and 7 May 1985, the WCOTP alleges that the Government of Australia/Northern Territory has undertaken reprisals - in the form of suppression of the check-off system - against lawful industrial action by its affiliate, the Northern Territory Teachers' Federation (NTTF). The WCOTP explains the background to this action as follows: on 15 August 1984 the NT Government unilaterally decided to alter housing arrangements for teachers and other public servants; one meeting took place on 24 August with the Government but the Housing Minister and Treasurer announced that the NT Government would not move from its new position; on 28 August the NTTF and eight other public employees unions staged a one-day strike to press for negotiations on the issue; since no negotiations ensued the NTTF recommended to its members, on 27 September, a series of bans on extra-curricular activities, designed not to affect the provision of teaching services during school hours; after one school excursion had to be cancelled, the NTTF was informed on 11 October 1984 that payroll deductions would cease unless industrial action stopped the next day; on 12 October the NTTF was told that the cessation would take place with effect as from next pay day i.e. 19 October; on 24 October the bans were lifted since a meeting to commence discussions with the Government had been arranged; on 1 February 1985 the NTTF met the NT Minister of Education who refused to discuss the restoration of the check-off. 378. According to the WCOTP, the rapidity with which government action was taken left no time to work out alternative methods of collection of membership dues. It points out that the NTTF was paying an agreed amount for the service of payroll deductions (over A$9,000 per annum). It considers that the cancellation of the check-off seriously impairs the conditions in which its affiliate carries on its work, particularly in view of the geographical circumstances of the Northern Territory where a sparse population is served in areas remote from the capital city, Darwin. Since nearly all NTTF members paid their subscriptions in the form of payroll deductions, the immediate effect of the removal of this system was a drop in membership from 1,860 to 56. The WCOTP explains that, through an alternative service agency, the NTTF has been able to regain membership dues for some 1,300 members but it fears that the NTTF will suffer financially from the withdrawal of payroll deductions and be impaired in its functioning and programmes. Given the employer's continued refusal to negotiate this issue, there is a risk of deterioration in the relationship between the NTTF and the Government. 379. In its communications of 23 April and 7 June 1985, the ACOA explains that its members were also affected by the NT Government's unilateral change in public servant housing arrangements and, along with many other unions, joined in the 24-hour strike of 28 August and later joined in the work bans, which affected overtime, ministerial correspondence etc. The Government withdrew payroll deduction facilities for ACOA and APSA members on 20 September 1985 (after only two days' warning) but not from the other unions. The work bans were lifted on 24 September 1984 but the Government has maintained its refusal to reinstate the check-off. The ACOA states that this has placed severe financial pressure on itself and the other unions involved, particularly because they operate in some of the remotest areas of Australia where it is impossible to collect union subscriptions by any means other than payroll deductions. The ACOA points out that it has 1,341 members in the NT, which reflects a fall of 80 since the withdrawal of the check-off. 380. The ACTU, in its letter of 9 May 1985, supports the complaint of the NTTF because it considers the NT Government's action as a reprisal to lawful industrial action and as a hastily used weapon. Given the serious adverse effect of the withdrawal of the check-off on the financial and organisational ability of the unions involved and the refusal of the employer to discuss its restoration, the ACTU believes that this action is an attempt by the Government to weaken a legally registered workers' organisation. 381. The APSA, in its communication of 11 June 1985, also supports the NTTF's complaint. B. The Government's reply 382. In its letter of 26 August 1985, the Government explains that the NT Government's decision to withdraw payroll deduction of union dues on 19 October 1984 took place against a background of continuing industrial action by NTTF, ACOA and APSA members in protest over the Government's budgetary decision to alter the housing and accommodation policy and practice as from 1 August 1984. According to the Government, despite a number of meetings in September with the Treasurer and the Public Service Commissioner after which the NT Government announced a change in its original decision in order to protect public servants on low incomes, the industrial action continued. Payroll deductions were discontinued on 20 September and the ACOA and APSA lifted their bans on 24 September. On the other hand, NTTF members continued their bans on all non-teaching activities, upon which the Education Department decided to cease its payroll deduction facilities as of 12 October (effective 19 October); teachers' industrial action only ceased on 24 October. 383. The Government stresses that the check-off was discontinued only after a period of warning, and did not apply to all NT workers' organisations originally involved in the dispute (i.e. only to the NTTF, ACOA and APSA). It also points out that in August 1979, in another matter, the ACOA had sought an injunction in the High Court of Australia restraining the cessation of payroll deductions on the grounds of breach of contract; the Court had dismissed the claim as evidence from the documents indicated that the facility resulted from the making of an administrative agreement. C. The Committee's conclusions 384. The Committee notes that the issue in this case concerns the withdrawal of check-off facilities in response to continuing industrial action by public employees' unions. It recalls that it has examined analogous allegations against the Government of Australia in the past. [See 204th Report, Case No. 902, paras. 135 to 147.] In that case, the Committee stated that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organisations, was not conducive to the development of harmonious industrial relations and should therefore be avoided. The Committee considers that the same principle applies to the present case. 385. The Committee also notes the on-going refusal of the NT Government to discuss the possible restoration of the check-off facility with the unions concerned. It expresses the wish that efforts will be made by the parties, on the basis of an agreement, to restore the check-off facility previously available to the unions. The Committee's recommendations 386. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) The Committee draws the Government's attention to the principle - as it has done in an analogous case in the past - that the withdrawal of the check-off facility, which could lead to financial difficulties for the unions involved, is not conducive to the development of harmonious industrial relations. (b) The Committee expresses the wish that efforts will be made by the parties, on the basis of an agreement, to restore the check-off facility previously available to the unions. CASES IN WHICH THE COMMITTEE REQUESTS TO BE KEPT INFORMED OF DEVELOPMENTS Case No. 1189 COMPLAINTS PRESENTED BY THE PUBLIC SERVICES INTERNATIONAL AND THE ORGANISATION OF AFRICAN TRADE UNION UNITY AGAINST THE GOVERNMENT OF KENYA 387. The Committee last examined this case at its February 1985 meeting when it presented an interim report to the Governing Body [238th Report, paras. 248 to 260]. Further information was received from the Government in a communication dated 6 September 1985. 388. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Labour Relations (Public Service) Convention, 1978 (No. 151); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 389. When it presented its interim report to the Governing Body in February 1985 the Committee made the following recommendations: (a) The Committee draws the attention of the Government to the principle that public servants, like all other workers without distinction whatsoever, have the right to form and join organisations of their own choosing, without previous authorisation, for the promotion and defence of their occupational interests. (b) The Committee considers that a welfare association, such as that envisaged by the Government, would not fully afford to the civil servants concerned an adequate means to protect and defend their occupational interests. (c) The Committee requests the Government to supply full and detailed information on the measures that have been taken, or are envisaged, to permit the establishment of an organisation through which the workers concerned may pursue their normal trade union activities. (d) The Committee requests the Government to transmit information on the question of the assets that were seized on the deregistration of the civil servants' organisation, and on the Government's intention as to the manner in which it is proposed to distribute these assets. B. Further reply by the Government 390. In a communication dated 6 September 1985, the Government states that the Kenya Civil Servants' Welfare Association has been registered under the Societies Act. It adds that, although the Association has not been allowed to participate in activities of a trade union nature, the gesture entailed in the registration is a good beginning and should be given a chance to operate. Attached to the reply of the Government was an extract from the constitution of the Association containing, inter alia, the objects and membership clauses thereof. C. The conclusions of the Committee 391. The Committee deeply deplores that the Government has not taken into account the recommendations adopted by the Governing Body at its 229th Session in February 1985, and that its most recent communication does little more than confirm that the situation in respect of which recommendations were made continues to exist. 392. The Committee regrets, in particular, the failure of the Government to supply any information on measures which have been taken or which may be envisaged to permit the establishment of organisations through which the workers in question may pursue their normal trade union activities and it regards as especially regrettable the Government's affirmation that the Kenya Civil Servants' Welfare Association has not been allowed to participate in activities of a trade union nature. 393. In the circumstances, the Committee draws the attention of the Government once again to the importance of the principle that public servants, like all other workers, without distinction, have the right to form and join organisations of their own choosing, without previous authorisation, for the promotion and defence of their occupational interests. It urges the Government to take the steps necessary to give effect to this principle and thus to restore to the civil servants concerned the rights which they enjoyed prior to the Government's action of 17 February 1983 deregistering the Kenya Civil Servants' Association. 394. The Committee also notes with regret that the Government has failed to respond to the request for information concerning the assets which were seized when the Kenya Civil Servants' Association was deregistered. In this regard, it draws the attention of the Government to the principle that when a trade union is dissolved, its assets should eventually be distributed among its former members or handed over to the organisation which succeeds it; by this is meant the organisation or organisations which pursue the aims for which the dissolved union was established and which pursue them in the same spirit. The Committee expresses disquiet at the absence of any indications that the Government intends to put this principle into effect and calls upon it to do so. The Committee's recommendations 395. The Committee recommends the Governing Body to approve this report and, in particular, the following conclusions: (a) The Committee deeply deplores that the Government has not taken into account the recommendations adopted by the Governing Body at its 229th Session in February 1985. Its most recent communication confirms the situation which gave rise to the complaints. (b) The Committee regrets the failure of the Government to supply any information on measures which have been taken or which may be envisaged to permit the establishment of organisations through which the civil servants in question may pursue their normal trade union activities, especially since the Kenya Civil Servants' Welfare Association has not been allowed to participate in activities of a trade union nature. (c) The Committee draws the attention of the Government once again to the importance of the principle that public servants, like all other workers, without distinction, have the right to form and join organisations of their own choosing, without previous authorisation, for the promotion and defence of their occupational interests. (d) The Committee further notes with regret that the Government has failed to respond to the request of the Governing Body for information concerning the assets which were seized when it was deregistered. (e) The Committee draws the attention of the Government to the principle that when a trade union is dissolved, its assets should be distributed among its former members or handed over to the organisation or organisations which succeed it: by this is meant those organisations which pursue the aims for which the dissolved union was established and which pursue them in the same spirit. (f) The Committee requests the Government to keep it informed of any action it takes in respect of the above recommendations. Cases No. 1277 and 1288 COMPLAINTS PRESENTED BY SEVERAL REGIONAL AND INTERNATIONAL TRADE UNION ORGANISATIONS, NAMELY: THE INTER-AMERICAN REGIONAL ORGANISATION OF WORKERS, THE LATIN AMERICAN CONFEDERATION OF WORKERS, THE PERMANENT CONGRESS OF TRADE UNION UNITY OF LATIN AMERICAN WORKERS, THE WORLD FEDERATION OF TRADE UNIONS, THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE WORLD CONFEDERATION OF LABOUR AND BY SEVERAL DOMINICAN TRADE UNION ORGANISATIONS, NAMELY: THE GENERAL WORKERS' FEDERATION, THE NATIONAL CONFEDERATION OF DOMINICAN WORKERS, THE GENERAL UNION OF DOMINICAN WORKERS, THE UNIFIED WORKERS CENTRAL AND THE WORKERS' TRADE UNION AUTONOMOUS FEDERATION AGAINST THE GOVERNMENT OF THE DOMINICAN REPUBLIC 396. The Committee examined these cases at its November 1984 Session and submitted an interim report to the Governing Body [see 236th Report of the Committee, paras. 651-685, approved by the Governing Body at its 228th Session (November 1984)]. Later, the Government transmitted certain observations by a communication dated 28 May 1985. 397. The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the cases 398. These cases concern essentially the serious incidents which occurred during days of protest in April and May 1984 which had been organised by the five Dominican trade union central organisations grouped together under the Trade Union Council against the very large increase in the cost of living following the agreement signed between the Dominican Government and the International Monetary Fund at the end of April 1984. 399. The numbers of dead and injured reported by the complainant organisations differed. According to ORIT and ICFTU, 65 workers had died and 600 had been injured. According to WCL, there had been 37 dead and 157 injured. According to WFTU, more than 100 deaths had been recorded. 400. The Government had stated in particular that on 23, 24 and 25 April 1984 violent public demonstrations had occurred both in the capital and the interior of the country; these had included, in particular, the sacking and burning of public and private property and flagrant acts of aggression against the authorities responsible for keeping the peace. Acting within the limits of the law, the authorities had resisted these attacks which unfortunately resulted in the death and injury of several persons. The Government stated that the action of the armed forces and the police had not been directed against any particular sector, whether trade unions, students or other citizens. 401. When the Committee examined the cases at its November 1984 Session the allegations relating to the deaths and injuries suffered during the aforementioned days of protest were left pending. The Committee formulated in particular the following recommendations: The Committee expresses its deep concern at the scope and seriousness of the allegations made in these cases and which concern the death and injury of several persons during trade union protest demonstrations against major increases in the cost of living. As regards the violent deaths and injury of a number of persons, the Committee recalls the importance of carrying out a thorough inquiry to determine responsibilities so as to prevent a repetition of such actions; it requests the Government to inform it of the outcome of such an inquiry. B. The Government's reply 402. In its communication dated 28 May 1985 the Government states that the complainant trade union central organisations claim to have sponsored the protest movements staged on 23, 24 and 25 April 1984; this is not in accordance with the truth, for the whole country is aware that those movements were not organised by those trade union organisations and that, on the contrary, they showed that they had been taken by surprise in not knowing the origin or leadership of the movements or the forces behind them; consequently, this aspect of the matter is outside the trade union framework. 403. The Government adds that the protest movements in question were in reality a rebellion against the legally established order which the forces of law and order, exercising their statutory powers, proceeded to repel. As a result of those circumstances, it is impossible to establish guilt, chiefly that of the unknown instigators and ringleaders who took advantage of the discontent prevailing among the masses of the people at that moment, in an endeavour to capitalise on it in favour of their own political interests. C. The Committee's conclusions 404. The Committee takes note of the information provided by the Government concerning the dead and injured during the protest movements of 23, 24 and 25 April 1984. The Committee notes, in particular, that according to the Government, it is impossible to establish guilt, in particular that of the unknown instigators and ringleaders who took advantage of the discontent prevailing among the masses of the people at that moment, in an endeavour to capitalise on it in favour of their own political interests. 405. In this connection, the Committee, notwithstanding that there may be difficulty in fixing responsibility for the deaths and physical attacks which occurred during the protest movements, wishes to point out that the Government has stated that several deaths and injuries occurred when the authorities responsible for keeping the peace, acting within the limits of the law, resisted flagrant acts of aggression and other criminal acts such as the sacking and burning of property. In these circumstances, the Committee considers that it would be possible to carry out a thorough and impartial inquiry into the nature of the demonstrations and the deaths and physical attacks which occurred, in order to determine responsibilities. The Committee requests the Government to keep it informed of the results of any such inquiry. The Committee's recommendations 406. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions: (a) The Committee observes the contradiction between the complainants' and the Government's statements as to the trade union status of the organisers of the protests which took place in April 1984. It points out, however, that the national complainant organisations have stated that they themselves had organised these protests. (b) The Committee emphasises the importance it attaches to the Government carrying out a thorough and impartial inquiry into the nature of the demonstrations and the deaths and physical attacks which occurred during the protest movements in order to determine responsibilites. (c) The Committee requests the Government to keep it informed of the results of any such inquiry. Case No. 1282 COMPLAINT PRESENTED BY THE LOCAL FEDERATION OF TRADE UNIONS OF CASABLANCA (MOROCCAN FEDERATION OF LABOUR) AGAINST THE GOVERNMENT OF MOROCCO 407. The Local Federation of Trade Unions of Casablanca, affiliated to the Moroccan Federation of Labour, submitted a complaint of violations of freedom of association in Morocco in a communication dated 3 April 1984. It sent additional information in support of its complaint in a communication of 9 May 1984. The Government transmitted its observations on the case in a letter of 13 May 1985, which reached the ILO when the Committee was in session. 408. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainant's allegations 409. The allegations of the complainant refer to the dismissal of 20 workers, four of whom were trade union and staff delegates whom the complainant mentions by name, following two strikes in support of workers' claims in January and February 1984, lasting 48 hours and 24 hours respectively, and to the hiring of workers to replace the strikers at the Société marocaine des compteurs Vincent at Mohammedia. 410. According to the complainants, following the presentation of a statement of claims by the workers, the management wished to compel them to work overtime on Saturday and Sunday. When the workers refused because they wished their demands to be met first, the management decreed a reduction in working time and an increase in the pace of production for certain departments. According to the complainant, these contradictory measures showed that the management was willing to resort to all kinds of pressure and diversionary manoeuvres to impede the workers' legitimate action in support of their claims. 411. The trade union leaders then approached the authorities, and meetings were held with the delegate from the Ministry of Labour on 30 January 1984, with the first deputy governor of the town of Mohammedia on 6 February 1984, and with the governor himself on 23 February and 23 April 1984. These approaches were unsuccessful, since the authorities were unable to induce the directors of the Société marocaine des compteurs Vincent to accept the need to reverse their decision on the dismissals and to open negotiations on the workers' demands. 412. The complainant organisation pointed out that the dismissal of trade union delegates was prohibited by Moroccan law and took exception to the recruitment of new workers while the strike was in progress. B. The Government's reply 413. According to the Government the dispute between Compteurs Vincent and the Local Federation of Trade Unions of Casablanca, affiliated to the Moroccan Federation of Labour, has been settled thanks to the efforts of the Casablanca Labour Inspectorate. 414. Eight of the dismissed workers, including two trade union delegates, have been reinstated in their employment. The remaining workers refused compensation for their dismissal from the undertaking and lodged an appeal with the court on 27 November 1984; however, the management of the undertaking stated that the dispute in question arose from demands by the staff which it was unable to satisfy owing to financial difficulties. The Government states that it will communicate any decision taken by the court on this case. C. The Committee's conclusions 415. The Committee notes that allegations have once again been made concerning reprisals by an employer against workers involved in a labour dispute. The Committee recalls that it has already had to examine a number of cases of this kind concerning Morocco, and even recently in the Compteurs Vincent undertaking. [See 230th Report, Case No. 1116 (Morocco), paras. 72 and 78 approved by the Governing Body in November 1983.] 416. While noting that the Government has supplied certain information on the measures taken to reinstate the eight workers as a result of the intervention of the labour inspectorate, the Committee observes that, as stated by the Government itself, the other workers dismissed in this case (12 according to the complainants) lodged appeals with the court on 27 November 1984. 417. The Committee recalls that it is often called upon to examine allegations against the Government of Morocco concerning dismissals on anti-union grounds and the hiring of workers to replace strikers. [See in particular 208th Report, Case No. 1017, paras. 392 to 403; 214th Report, Cases Nos. 992 and 1018, paras. 80 to 92; 230th Report, Case No. 1116, paras. 65 to 84; and 239th Report, Case No. 1201, paras. 110 to 123.] 418. The Committee must therefore once again draw the attention of the Government to the need for strengthening protection against acts of anti-union discrimination and must again stress that the current provisions of Moroccan legislation are inadequate. It therefore insists on the need to adopt more specific legal provisions than those that already exist in order to guarantee workers adequate protection, possibly accompanied by penalties against employers in the event of discrimination in respect of employment. 419. The Committee also wishes to point out that the hiring of workers to break a strike in a sector like that of Compteurs Vincent, which cannot be regarded as an essential sector in the strict sense of the term and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association. 420. In these circumstances the Committee trusts that the Government will keep it informed of the outcome of the appeals lodged by the persons concerned. The Committee's recommendations 421. In these circumstances the Committee recommends the Governing Body to approve the present report, and in particular the following conclusions: (a) the Committee notes with concern that it is often called upon to examine allegations against the Government of Morocco concerning dismissals on anti-trade union grounds and the hiring of workers to replace the strikers; (b) the Committee once again draws the Government's attention to the need to strengthen protection against anti-union discrimination, and requests it to keep the Committee informed of the outcome of the appeals lodged with the courts by the dismissed workers. CASES IN WHICH THE COMMITTEE HAS REACHED INTERIM CONCLUSIONS Case No. 1054 COMPLAINTS BY THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE WORLD CONFEDERATION OF LABOUR, THE WORLD FEDERATION OF TRADE UNIONS, THE DEMOCRATIC CONFEDERATION OF LABOUR AND OTHER TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF MOROCCO 422. The Committee has examined this case on several occasions, the most recent being at its February 1985 meeting, when it presented an interim report to the Governing Body [see 238th Report, paras. 205 to 216, approved by the Governing Body at its 229th Session in February-March 1985]. The Government subsequently furnished some observations in a communication dated 30 May 1985, received by the ILO while the Committee was in session. 423. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 424. The complaints still outstanding in this matter relate to the death or injury of several hundred persons during demonstrations in connection with the 24-hour general strike called by the Democratic Confederation of Labour (CDT) on 20 June 1981 and with the closure of the CDT premises. 425. At its session in February-March 1985 the Governing Body approved the following conclusions drawn up by the Committee: The Committee observes with regret that the Government has not indicated whether a judicial inquiry was made into the many deaths that occurred during the June 1981 demonstrations. It considers that events of such gravity should have led the authorities to take effective measures to elucidate the facts and determine responsibilities. It again requests the Government to indicate whether an inquiry has been carried out and, if so, to communicate the results thereof. The Committee recalls the importance it attaches to the protection of trade union property. It expresses the hope that the two trade unions affected by the closure of their headquarters have now fully recovered the use of their premises, and requests the Government to supply information in this regard. B. The Government's reply 426. In its communication of 30 May 1985, concerning the judicial inquiry into the events of 20 June 1981, the Government states that it has published a communiqué setting out detailed information to the effect that the special courts carried out their duty in accordance with the laws in force in Morocco. 427. According to the Government the rights and safeguards of the defence were respected and sentences were passed according to the criminal nature of the acts committed by the persons charged. The persons implicated in the demonstrations were found guilty and punished. Those whose involvement was not proved were released. 428. Regarding the allegation in connection with the closure of the premises of the Democratic Confederation of Labour, the Government states that it has never ordered the closure of any CDT premises. 429. Furthermore the Government states that it has in general used dialogue and consultation constructively in its relations with the various occupational organisations and that it has initiated high-level contacts with trade union representatives to examine various economic and social questions with them. It also recalls that the CDT is now represented in Parliament and is consequently in a position to raise occupational and trade union issues before the Government, which it can question orally. 430. In conclusion, the Government hopes that it can rely on the perception or sense of fairness of the Committee on Freedom of Association to reinforce its efforts to settle Case No. 1054 once and for all. C. The Committee's conclusions 431. The Committee expresses regret that the Government has not supplied it with the communiqué referred to in its reply of 30 May 1985 which it states contains detailed information concerning the deaths and injuries that occurred during the demonstrations of 20 June 1981. The Committee requests the Government to communicate this document to it. 432. The Committee had already noted the fact that all the trade union leaders who were involved in this matter were released in November 1983, following a royal pardon, after more than two years' imprisonment [see 233rd Report, para. 237]. The Committee also noted that the Democratic Confederation of Labour is once more taking part in the political and trade union life of the country and that a number of its representatives have seats in Parliament. 433. The Committee also observes that, according to the Government's reply of 30 May 1985, it had never ordered the closure of any CDT premises. 434. As regards the case as a whole, relating to events that took place in June 1981 and in view of the fact that two years ago the King pardoned the trade union leaders who had been involved in the matter, the Committee notes that the measures taken seem to fit in with the present pattern of a return to a fully normal situation in the trade union movement since the CDT is now represented in Parliament and is consequently in a position to raise occupational matters before the Government, which it can question orally. 435. In these circumstances the Committee trusts that the situation which arose in connection with Case No. 1054, and which involved death and injuries during a strike in pursuit of economic and social demands, will not recur. 436. The Committee wishes to remind the Government that, in ratifying Convention No. 98 - and in particular Article 4 thereof - it committed itself to taking appropriate measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to regulating conditions of employment. 437. The Committee also reminds the Government of the very great importance it attaches to the possibility of having recourse to strike action as a legitimate means of defending the workers' economic and social interests. 438. The Committee therefore appeals to the Government to engage in a dialogue with all the trade union forces in the country, and in particular with the CDT, so that the Government may henceforth ensure that economic and social problems are resolved through industrial relations machinery which is considered reliable by those concerned. The Committee's recommendations 439. In these circumstances the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions: (a) It regrets that the Government has not supplied it with the communiqué referred to in its reply of 30 May 1985 containing detailed information concerning the deaths and injuries that occurred during the demonstration of 20 June 1981. The Committee requests the Government to communicate this document to it. (b) The Committee reminds the Government of the very great importance it attaches to the possibility of having recourse to strike action as a legitimate means of defending the workers' economic and social interests and that henceforth economic and social problems may be resolved through industrial relations machinery which is considered reliable by those concerned. (c) The Committee appeals to the Government to engage in a dialogue with all the trade union forces in the country, and in particular with the CDT, in order to ensure that a situation which resulted in death and injury during a strike called for essentially economic and social reasons in June 1981, will not recur. Cases Nos. 1129, 1169, 1185 and 1298 COMPLAINTS PRESENTED BY A NUMBER OF INTERNATIONAL AND NATIONAL TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF NICARAGUA 440. The Committee examined Case No. 1129 on two occasions, at its November l982 and February 1984 meetings, when it presented interim reports to the Governing Body. [See 218th Report, paras. 467-481, and 233rd Report, paras. 236-242 and 317, approved by the Governing Body at its 221st and 225th Sessions in November 1982 and February-March 1984 respectively.] The World Confederation of Labour sent additional information in support of its complaint on 13 April 1984. 441. Case No. 1169 has been examined by the Committee on four occasions: in March 1983, March and June 1984 and March 1985. [See 222nd, 233rd, 234th and 238th Reports of the Committee, approved by the Governing Body.] 442. Case No. 1185 was examined in the Committee's 233rd Report [see paras. 294-307 and 317] approved by the Governing Body at its February-March 1984 session. The Committee also noted certain information communicated by the Government in January 1985 [See 238th Report, para. 9, approved by the Governing Body in February-March 1985]. 443. Case No. 1298 was examined in February-March 1985 and was the subject of an interim report approved by the Governing Body. [238th Report, paras. 232-247.] 444. The Government supplied certain information on these cases in communications of January, May and 29 October 1985. 445. Nicaragua 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). Case No. 1129 446. In Case No. 1129, the complainants alleged that as part of a systematic campaign by the Government to destroy the Central of Nicaraguan Workers (CTN), the authorities had physically assaulted members of the CTN working on the state-controlled banana estates and sugar plantations. The official militia were said to have threatened the lives of CTN leaders. In this connection the complainants stated that Luis Mora, President of the Press Workers' Union, and Salvador Sánchez, had allegedly been threatened in this way when they were under detention and that the police had attempted to make Salvador Sánchez sign a statement against the CTN. Moreover, sugar workers belonging to the CTN had allegedly been prevented from entering their workplace and other members of this union had been allegedly arrested solely by reason of their membership and their involvement in union activities. 447. During a direct contacts mission by a representative of the Director-General in December 1983, the leaders of the CTN had stated that the physical attacks by the authorities in state-controlled banana estates and sugar plantations were continuing. The Ministry of Labour considered that the complaints should be more specific, since they did not indicate who made the death threats, or the date, place and circumstances in which the events supposedly took place. According to the Government, the allegations of physical attacks and denial of entry to work centres were equally vague, as they gave no names, places or dates. 448. At its February-March 1984 session, the Governing Body approved the following recommendations of the Committee: (a) The Committee requests the Government to take up the suggestion of the Director-General's representative that the Ministry responsible for agrarian reform should obtain further information and be informed of the allegations that members of the CTN have been physically attacked by the authorities on state-controlled banana estates and sugar plantations, and that sugar workers affiliated to the CTN have been prevented from entering their work centres; the Committee also requests the complainant to transmit any further information it may have concerning this matter. (b) The Committee requests the Government to call for an investigation of the alleged threats by official militias against the lives of trade union leaders (specifically, Luis Mora and Salvador Sánchez) and to keep it informed of its findings." 449. Subsequently, in its communication of 13 April 1984, the WCL complained of the arrest of several members of the CTN, whom it mentioned by name, and whose names also appear in Cases Nos. 1169 and 1298 which will be examined in the present working paper, with the exception of Eduardo Alberto Gutiérrez, Eric González González and Miltón Silva Gaitán. Moreover, the WCL alleged that the Ministry of Labour refused to recognise the executive committees of a number of unions in the agricultural estates of Fátima and Las Mojarras at El Jicaral (department of León), of the La Concepción agricultural estate in Matagalpa, and of the Chinandega and Managua service stations, all members of CTN. 450. In its communication of January 1985 the Government explained that prior to the Revolution, one banana workers' union had covered 16 banana plantations in the west of the country, and that following the change of régime this union had freely and voluntarily joined the Sandinista Central of Workers (CST). During 1982 the owner of these plantations had embarked on dealings with the CTN in order to set up a union parallel to the one already existing. 451. According to the Government, the CTN activist in this region was Pablo José Muñoz Bermúdez, one of the murderers of Dr. Pedro Joaquín Chamorro, director and owner of the newspaper La Prensa. This individual used the pseudonym Juan José Ramos López to disguise his true identity. With the support of the owner of the agricultural estates, this CTN activist had coerced workers into leaving the banana workers' union. Serious clashes had taken place between the two groups, and the behaviour of the owner moreover constituted a violation of the labour laws and the provisions of Convention No. 98. Once the true identity of the CTN leader was known, the workers reacted violently and the authorities had been obliged to intervene in order to avoid more serious consequences. 452. Regarding the obstacles encountered by the CTN leaders in the sugar industry, the Government states that this union carried on its activities solely in the Xavier Guerra refinery. In this factory acts of sabotage, such as throwing stones and metal rods into the machinery for the obvious purpose of damaging them, had taken place. Those responsible had been dismissed in accordance with the law. Some of them, moreover, had been subsequently reinstated in their employment. 453. As regards the threats against Mr. Salvador Sánchez, the Government explained that this individual had been working at the Aldo Chavarría hospital, and that with the complicity of a physician in this establishment he had often obtained sick leave for the purpose of devoting all his time to political activities under the trade union cover of the CTN. Moreover, he had stolen medicaments worth several thousand córdobas from the hospital for lucrative purposes. When he had been discovered, he had taken refuge in the Venezuelan Embassy, alleging political persecution, whereas in reality he had been accused of an offence under the ordinary law. He later went to Costa Rica, where he joined a counter-revolutionary organisation in which he had been placed in charge of a military force with which he had tried to occupy the frontier post at El Espino in October 1983. He had then been captured, judged in accordance with the law of the land, and was now serving his sentence. 454. As for Luis Mora, the Government stated that during his trial it had been proved that, during a trip to Costa Rica, he had been recruited by the ARDE organisation which had given him money and equipment for counter- revolutionary activities. Luis Mora had admitted his crimes during a national television broadcast and had implicated leaders of the CTN. The Government explained that, as this was his first offence, he had been pardoned in August 1984. 455. Finally, the Government said that offences under ordinary law should not be used to damage the image of a government by taking advantage of the cover and the authority afforded by the ILO. 456. The Government repeats its earlier statement in its reply of 27 May l985, but does not reply to the allegation relating to the refusal of the authorities to register the executive committees of certain trade unions. Case No. 1169 457. The allegations still pending in Case no. 1169 referred to the arrest of six persons, whose names were listed in Annex I to the Committee's 238th Report, and of 18 other trade union leaders or members whose names figured in Annex II to the same Report. The complainants also alleged that members of the Trade Union of Dockers, Employees and Office Staff of Corinto Docks (SEEOMC), in particular Messrs. Danilo Contreras and René Argeñal, respectively President of the union and Treasurer of its Supervisory Board, had allegedly been obliged to leave the country because they had been harassed by the labour and military authorities. 458. Regarding the alleged arrests of the six persons mentioned in Annex I, the Government replied that these were not trade unionists, nor were they any longer in prison. It did not, however, indicate the concrete facts warranting these arrests. 459. In connection with the imprisonment of the 18 trade union leaders or members whose names were listed in Annex II, the Government stated that it needed additional information in order to be able to reply to these allegations (workplace and present whereabouts, office held and union to which they belonged, place and date of the arrest and the grounds for it). 460. The Committee accordingly requested the complainants to provide further details. It nevertheless pointed out to the Government that the complainants had already provided a number of elements of information regarding the arrests concerned, in particular their date and place, so that the Committee hoped that the Government would be in a position to reply to these allegations at an early date. 461. Regarding the harassment to which the members of the Trade Union of Dockers, Employees and Office Staff of Corinto Docks, in particular Messrs. Contreras and Argeñal, were said to have been subjected, the Government told the representative of the Director-General during the direct contacts mission of December 1983 that Mr. Contreras had voluntarily left the country after having cashed a cheque on 21 February 1983 for 12,740 córdobas, made out by an undertaking to the order of the SEEOMC. The cheque should have been deposited in the union's account as required by Nicaraguan law, but, with the connivance of a bank employee, Mr. Contreras was able to cash it. As to René Argeñal, he left the country after taking 3,000 córdobas from the SEEOMC's petty cash. 462. At its February 1984 session, the Committee noted this information but requested the Government to send the text of the final decision handed down in the matter of the alleged embezzlement of SEEOMC funds. 463. The Government later said that it would send a copy of the court decision as soon as it had been given. 464. At its February-March 1985 session, the Governing Body adopted the following recommendations of the Committee: Bearing in mind that the Government has not indicated the precise facts warranting the arrest of six persons (mentioned in Annex I) whose subsequent release it confirms, the Committee wishes to draw the attention of the Government to the principle that measures designed to deprive trade union leaders and members of their freedom constitute a serious risk of interference in union activities and that, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association. The Committee requests the Government to indicate the concrete acts which gave rise to the arrest of these six persons. Regarding the imprisonment of 18 trade union leaders and members (mentioned in Annex II), the Committee notes that the Government states that it needs additional information in order to be able to reply (workplace and present whereabouts, office held and union to which they belong, place and date of the arrest and grounds for it). The Committee requests the complainants to provide as many details about these persons as they can obtain in the sense indicated by the Government. The Committee nevertheless wishes to point out to the Government that the complainants have already provided a number of elements of information regarding the arrests concerned, in particular their date and place (see 233rd Report, paras. 255-256) for which reason the Committee considers that the Government should be in a position to reply to these allegations at an early date. The Committee notes that the Government will transmit the results of the embezzlement proceedings affecting the trade union organisation SEEOMC as soon as the judgement is handed down. 465. With its reply of 27 May 1985 the Government sends the judicial decision in the embezzlement proceedings affecting the Trade Union of Dockers, Employees and Office Staff of Corinto Docks, handed down by the Court of Appeal of León (criminal division) on 31 January 1984. This decision confirms the sentence of imprisonment by the judge of the court of first instance at Chinandega pronounced in their absence against Messrs. Argeñal and Contreras, former President and Treasurer of the union, for theft from the said union, more precisely for the unlawful appropriation of the sums of 3,000 and l2,740 córdobas respectively, and for having left the country. 466. In this communication the Government also indicates that it is endeavouring to collect information regarding the grounds for the arrest of the six persons mentioned in Annex I to the 238th Report, who have been released, and it repeats its willingness to explain the situation of the 18 other persons mentioned in Annex II to the 238th Report. 467. In a subsequent communication dated 29 October 1985, as regards the six persons mentioned in Annex I, the Government states that Monico Fuentes was detained from 16 October 1982 to 7 January 1983 for having distributed counter-revolutionary tracts supporting what the Government refers to as a mercenary group (FDN), that Nicólas Gonzáles and Santos Ponce were detained from August to December 1982 for having delivered mail for the counter-revolutionary Rafaela Herrera, that Victoriano Ramos Jiménez was detained from 16 October 1982 to December 1983 for having given logistic support to the mercenary group (FDN), that Santos Larios Cornejo and Saturnino López Centeno were detained from 17 October 1982 to December 1983 for having recruited persons for the mercenary group FDN. 468. As regards the 18 other detained trade unionists mentioned in Annex II, the Government states that: (a) Cresencio Carranza Jarquín and Guillermo Salmerón Jiménez were detained from April to December 1983 for having participated in a campaign against the Government; (b) José Angel Altamirano López was arrested in April 1983 for having directed a counter-revolutionary unit and for being found in illegal possession of weapons. He belonged to the mercenary group ARDE and was sentenced to 12 years' imprisonment by the courts; (c) Mercedes Hernández Díaz was arrested in April 1983 for having recruited persons for the mercenary group ARDE and for having provided financial aid for the purchase of arms. She was sentenced to 12 years' imprisonment; (d) Eleázar Marenco was arrested in April 1983 for having participated in several conspiratorial meetings and for having provided financial aid for the purchase of arms. He was sentenced to six years' imprisonment; (e) Reynaldo Blandón, former Somosa national guardsman, was detained from 27 March to 12 September 1980; (f) Erik Luna was detained from 11 to 17 May 1983 for having known of the activities of counter-revolutionary elements linked to the ARDE; (g) José Angel Peñalosa was also detained from 11 to 17 May 1983 for his logistic support of the mercenary group ARDE; and (h) Fidel López Martínez was detained from December 1982 to January 1983 for separatist propaganda activities. The Government states that it will soon send information on the remaining cases. Case No. 1185 469. The allegations pending in Case No. 1185 referred to the arrest of Abelino González País on 2 February 1983 in El Pijao district, north of Matagalpa, simply for being a member of the Central of Nicaraguan Workers (CTN); he was allegedly being held without charge at the central command post of Matagalpa. 470. The complainants also alleged persecution, harassment, interrogation and threats by State Security agents against Hermógenes Aguirre Largaespada, an official of the Union of Employees and Manual Workers of Andes and Induquinisa (STAI) affiliated to the CTN, and Larry Lee Shoures, President of this union. The former had been interrogated about the activities of his union on ten occasions and had been pressed to become an informer for the State Security forces. Moreover, on 24 April 1983, a member of the Sandinista People's Army was said to have fired four shots at his house and insulted him and his family. The following day, 20 people went to the homes of Messrs. Aguirre and Larry Lee Shoures, threatening to kill them and to set fire to their houses for being affiliated to the CTN and therefore counter-revolutionaries. 471. At its February 1985 session, the Committee noted, in paragraph 9 of its 238th Report, the Government's statement in its communication of January 1985 that these persons were not detained and its request for further information on them to facilitate inquiries. The Committee recalled that detailed allegations could be found in paragraph 295 of its 233rd Report and requested the Government to send a clear and precise reply on these allegations and on the situation of these trade unionists. 472. In its communication of 27 May 1985, the Government stresses its intention to transmit to the Committee on Freedom of Association at a later date any information which it might obtain on the situation of Messrs. Hermógenes Aguirre Largaespada and Larry Lee Shoures, and on that of Mr. Abelino González País, and again confirms that the names of the persons concerned do not appear in the prison records. Case No. 1298 473. The allegations pending in the present case referred to the occupation of the headquarters of the Confederation of Trade Union Unity (CUS) on two occasions, once by a group of 20 persons on 18 August 1984 and a second time after groups of persons had broken in on 25 August 1984. 474. The Government considered that these incidents were the result of divided opinions within the CUS as to whether it should remain within or withdraw from an opposition political group. 475. In the complainants' view, on the other hand, the incidents were caused by the interference of public officials with a view to obtaining the CUS's withdrawal from this opposition movement. 476. The complainants also sent in support of their complaint a statement by a legal adviser to the CUS, sworn before a notary, in which he states that he was subjected to threats and pressure in order to induce him to commit acts that would be instrumental in doing away with the CUS. The person concerned stated that an official of the Ministry of the Interior had ordered him to seek out persons belonging to the CUS to support a group of persons not belonging to this organisation which had occupied its headquarters. He had been forced to go to the CUS on 25 August to support the occupants, and had there met members and non-members of the CUS. A general assembly had then been held at the CUS headquarters and, when the parties failed to reach an agreement, several persons had injured or harangued the true members of the CUS and partially destroyed its office. 477. The complainants also stated that the police had done nothing to stop the attack on the CUS headquarters by certain groups on 25 August. 478. At its February-March 1985 session the Governing Body approved the following recommendations of the Committee: (a) With respect to the occupation of the CUS headquarters on two occasions, and in order to be able to pronounce on this matter in full knowledge of the facts, the Committee requests the Government to send specific observations on the complainants' allegations that the occupation of the CUS premises on successive occasions resulted from interference by public officials (in particular, on the link between the State Security forces and the two persons who carried out the first occupation, and the notarised statements of the former legal adviser to the CUS concerning interference by the authorities in the two occupations of the CUS headquarters). (b) The Committee requests the Government to reply to the allegation that the police, in spite of being in the vicinity of the CUS headquarters on 25 August 1984 (the day on which the violent events mentioned in the complaint occurred) did nothing to avoid the attack by certain groups, intervening only when everything was over. (c) The Committee would point out that the climate of violence which forms the background to some of the allegations can only impede the free exercise of trade union rights. (d) The Committee requests the Government to reply to the allegation concerning the arrest of José Agustín Téllez, Secretary-General of the Federation of Peasant Workers in Carazo (FETRACAMCA)." 479. In its communication of 27 May 1985, the Government gives information on the judicial dissolution of the Union of Workers in Agricultural Enterprises of Masaya by court decision of 13 June 1984. It also indicates that two new unions have applied for registration with the directorate of trade union organisations and that the latter is examining the applications. It does not reply to the allegations pending in the present case regarding the occupation of the CUS headquarters and the arrest of the Secretary-General of the Federation of Peasant Workers in Carazo. The Committee's conclusions 480. In general, the Committee observes that the Government has supplied detailed replies on certain aspects of the present cases, but regrets that it has not replied to all the allegations. 481. Regarding Case No. 1129, the Committee notes the detailed replies furnished by the Government regarding both the difficulties encountered by the officials of unions affiliated to CTN in conducting their union activities in plantations and in the sugar industry, and on the situation of Messrs. Luis Mora and Salvador Sánchez. 482. In connection with the former point, the Committee notes that, according to the Government, the assaults on an official of the CTN were not attributable to the authorities and that the dismissals that had taken place in the only refinery in which the CTN was represented were due to acts of sabotage. The Committee also has to note that, despite the request for additional information on this aspect of the case addressed to them in February 1984, the complainants have supplied no details in support of their allegations. 483. As regards Messrs. Luis Mora and Salvador Sánchez, it would appear from the Government's observations that the former has been pardoned and the latter sentenced for activities unconnected with freedom of association. 484. The Committee nevertheless notes with regret that the Government has still not replied to the most recent allegations of the WCL concerning the imprisonment of Eric González González, Miltón Silva Gaitán and Eduardo Alberto Gutiérrez, members of the CTN, and the refusal to register the executive committees of unions on the agricultural estates of Fátima and Las Mojarras in El Jicaral (department of León), the agricultural estate of La Concepción in Matagalpa and the Chinandega and Managua service stations, despite the fact that, according to the Government's reply on Case No. 1298, two new unions have been registered, of which it gives no further details. The Committee requests the Government to send replies on these various points. 485. With respect to Case No. 1169, the Committee notes the decision of the Court of Appeal of León (criminal division) of 31 January 1984 confirming the sentences of imprisonment pronounced in their absence against Messrs. Contreras and Argeñal, former President and Treasurer of the Supervisory Board of the Trade Union of Dockers, Employees and Office Staff of Corinto Docks, respectively convicted of having unlawfully appropriated the sums of 12,740 and 3,000 córdobas belonging to the union and of having fled the country. 486. As regards the six persons mentioned in Annex I of the 238th Report, the Committee notes the information provided by the Government from which it appears that these persons were arrested in 1982 and released in 1983 for having distributed counter-revolutionary tracts or for having given logistic support to counter-revolutionary activities. 487. As regards the 18 trade unionists mentioned in Annex II of the 238th Report, the Committee notes that the Government supplies information on nine of them from which it appears that three were sentenced to imprisonment for having directed counter-revolutionary activities or for possession or purchase of arms. The six other persons on whom the Government supplies information were released after being detained for counter-revolutionary activities. The Committee requests the Government to supply copies of the judgements handed down against these three persons and to indicate whether the nine other trade unionists mentioned by the complainants, namely Rito Rivas Amador, Iván Blandón, Víctor Ríos, Napoleón Aragón, Juan Ramón Duarte and his brother, Maximino Flores Obando, Anastasio Jiménez Maldonado and Gabriel Jiménez Maldonado are still in prison and, if so, to supply details on the specific reasons for their continued detention. 488. With respect to Case No. 1185 the Committee notes the Government's assurances that the names of Abelino González País, Hermógenes Aguirre Largaespada and Larry Lee Shoures do not appear on the prison records. 489. Nevertheless, bearing in mind that the two last-mentioned persons are alleged to have been subjected to reprisals and violence for having belonged to a trade union affiliated to the CTN, the Committee must firmly recall the importance it attaches to the conduct of trade union activities in full freedom. It therefore urges the Government to make every effort to guarantee a climate favourable to the development of the various peaceful tendencies of the trade union movement in Nicaragua. 490. Regarding Case No. 1298 the Committee notes with regret that the Government has not replied to the allegations still pending. 491. It repeats its earlier request for an explanation of the occupation of the CUS headquarters on 18 August 1984, led by two persons alleged to have links with the State Security forces, as evidenced by the notarised statement of the former legal adviser to the CUS. 492. It also again requests the Government to reply to the allegation that on the occasion of the second occupation of the CUS headquarters on 25 August 1984, the police did nothing to stop the attack and intervened only when everything was over, although they were in the vicinity of the organisation's headquarters. 493. Finally, it again requests the Government to indicate whether José Agustín Téllez, Secretary-General of the Federation of Peasant Workers in Carazo, is in prison and if so, to indicate the grounds for his detention. The Committee's recommendations 494. In these circumstances the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions: Generally speaking, the Committee observes that, during its session in May 1985, the Government supplied detailed replies on certain aspects of the present cases, but regrets that it has not replied to all the allegations. The Committee also deplores that the latest information supplied by the Government concerning the detention of trade unionists was only received by the Committee during its present meeting. (a) In Case No. 1129 the Committee notes that Mr. Mora has been pardoned and that Mr. Sánchez has been sentenced for activities unconnected with freedom of association. (b) The Committee requests the Government to send its observations on the allegations to which it has not replied regarding the imprisonment of three trade unionists mentioned by the complainants, the names of which are annexed to the present report, and on the refusal to register the executive committees of the agricultural unions of Fátima and Las Mojarras in El Jicaral (department of León) and of La Concepción in Matagalpa, and of the unions of service station workers in Chinandega and Managua. (c) In Case No. 1169 the Committee notes that of the 18 trade unionists mentioned by the complainants, six have been released and three have received prison sentences. It requests the Government to supply copies of the judgements handed down against these three persons and to indicate whether the nine other trade unionists cited in the Annex are still in prison and, if so, to state the reasons for their detention. (d) In Case No. 1185 the Committee considers that, bearing in mind the allegations that trade union officials have been subjected to reprisals and violence for having belonged to a union affiliated to the CTN, it must recall the importance which it attaches to the exercise of trade union activities in full freedom. It therefore urges the Government to make efforts to guarantee a climate favourable to the peaceful development of the different tendencies of the trade union movement in Nicaragua. (e) In Case No. 1298 the Committee notes with regret that the Government has not replied to the allegations still pending. (f) The Committee repeats its earlier request for an explanation of the occupation of the CUS headquarters on 18 August 1984, led by two persons alleged to have links with the State Security forces, as evidenced by the statement made by the former legal adviser to the CUS. (g) The Committee again requests the Government to reply to the allegation that, during the second occupation of the CUS headquarters on 25 August l984, the police did nothing to stop the attack and intervened only when everything was over, although they were in the vicinity of the organisation's headquarters. (h) The Committee again requests the Government to indicate whether José Agustín Téllez, Secretary-General of the Federation of Peasant Workers in Carazo, is in prison and if so, to indicate the grounds for his detention. List of trade union activists and officials alleged by the complainants to be still in prison Case No. 1129 Eric González González Miltón Silva Gaitán Eduardo Alberto Gutiérrez: CTN official arrested and violently dragged from his home in November 1983 Case No. 1169 Rito Rivas Amador: Arrested at Juigalpa (department of Chontales) in December l982 Iván Blandón ) Arrested at Cascal-Nueva Quinca (department of Víctor Ríos ) Zelaya) in April 1983 Napoleón Aragón ) Juan Ramón Duarte and ) his brother Maximino Flores Obando: Arrested in the department of León in December 1982; sentenced to three years' imprisonment by the Sandinista People's Courts for organisation of the counter-revolution in the region Anastasio Jiménez Maldonado) No specific indications given by the Gabriel Jiménez Madonado ) complainants Cases Nos. 1176, 1195, 1215 and 1262 COMPLAINTS PRESENTED BY THE PERMANENT CONGRESS OF TRADE UNION UNITY OF LATIN AMERICAN WORKERS, THE AUTONOMOUS TRADE UNION FEDERATION OF GUATEMALA, THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE WORLD FEDERATION OF TRADE UNIONS AND THE NATIONAL COMMITTEE OF TRADE UNION UNITY AGAINST THE GOVERNMENT OF GUATEMALA 495. The Committee examined Cases Nos. 1176, 1195 and 1215 at its November 1984 and May 1985 meetings and on both occasions submitted an interim report to the Governing Body [see 236th Report, paras. 401-525, and 239th Report, paras. 210-225, approved by the Governing Body at its 228th Session (November 1984) and 230th Session (May-June 1985), respectively]. The Committee also examined Case No. 1195 at an earlier meeting [see 230th Report, paras. 689-699, approved by the Governing Body at its 224th Session (November 1983)]. 496. At its meeting in February 1985, the Committee examined Case No. 1262 and submitted an interim report to the Governing Body [see 238th Report, paras. 269-281, approved by the Governing Body at its 229th Session (February-March 1985)]. 497. Subsequently, the International Confederation of Free Trade Unions (ICFTU) and the World Federation of Trade Unions (WFTU) submitted new allegations in connection with Case No. 1195 in communications dated 13 June and 24 July 1985, respectively. The Autonomous Trade Union Federation of Guatemalteca (FASGUA) presented further allegations in connection with Case No. 1215 in a communication dated 4 September 1985. 498. The Government sent a certain number of observations in two communications dated 28 August 1985. 499. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the cases 500. When the Committee examined Cases Nos. 1176, 1195 and 1215 at its meeting in May 1985, it made the following recommendations regarding the allegations still pending [see 239th Report, para. 225]: (a) The Committee expresses its deep concern at the serious nature of the situation which is characterised by the detention, kidnapping, assault or assassination of trade union leaders and other persons connected with the trade union movement, all the more so since some of the allegations date from January 1983 and the whereabouts of the abducted persons remain unknown. (b) The Committee urges the Government to do its utmost to ensure that the investigations under way - which should be conducted by the judiciary - result in the whereabouts of those who have disappeared being clarified (Julián Revolorio, Raimundo Pérez, Yolanda Urízar, Manuel Francisco Contreras, José Luis Ramos, Luis Estrada, Víctor Ascón, Lucrecia Orellana, Gracida Samayoa and her two children and Antonia Argüeta), the facts being elucidated in full, responsibilities being determined and the guilty parties being punished. The Committee requests the Government to inform it of developments on this point. (c) The Committee draws the Government's attention to the principle that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to the inviolability of human life and personal safety, are fully respected and guaranteed. (d) The Committee requests the Government to send its observations on the allegations contained in FASGUA's communications of 10 October 1984 (the closing down of operations at the Universal Textiles Factory with a view to destroying the union and the kidnapping of the brother of the trade unionist Valerio Oscal) and 12 February 1985 (assault on, and kidnapping of, Mr. Sergio Vinicio Samayoa Morales), as well as on those contained in the communications from the ICFTU and ORIT dated 10 May 1985 (abduction of the trade union leader Felicita Floridalma Lucero). c 501. With respect to Case No. 1262, the Committee made the following recommendations concerning the allegations still pending at its meeting in February 1985 [see 238th Report, para. 281]: (a) The Committee expresses its deep concern at the serious nature of the allegations which refer, in particular, to many cases of kidnapping and disappearance or attempted kidnapping, as well as the serious physical assault of trade union leaders or trade unionists, and deplores the fact that the Government has not sent detailed information in this respect except as regards one person mentioned by the complainants. (b) As regards the attempted kidnapping of the trade union leader Alvaro René Sosa and the physical assault of which he was the victim, the Committee urges the Government to carry out a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties. The Committee requests the Government to supply information on any such inquiry and on its outcome. (c) As regards the kidnapping and disappearance or attempted kidnapping of the other trade union leaders or trade unionists mentioned by the complainants (in one case the allegation concerns the kidnapping of the brother of a trade union leader who had escaped various attempts at capture), the Committee urgently requests the Government to carry out the necessary investigations to determine the whereabouts of the persons who have allegedly disappeared and to initiate a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties for the kidnappings or attempted kidnappings. The Committee requests the Government to supply information on any such inquiry and on its outcome. (d) In general, the Committee draws to the Government's attention the principle that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed. B. New allegations 502. In a communication dated 13 June 1985, the ICFTU refers to a mission which it sent from 27 January to 9 February 1985 to Central America, where among other countries it visited Guatemala. According to information received by the mission, Guatemala is living in a state of insecurity because of the persistent policy of intimidation and terror employed against the population, while the practice of arrest and disappearance has become a standard and systematic instrument of repression from which an alarming number of victims have suffered, especially trade union leaders both in the towns and in the country. 503. The ICFTU adds that the mission drew up a list of cases of arrest and disappearance, assassinations and attacks on trade union leaders and activists; 97 instances of arrest and disappearance and 37 assassinations were cited between 1980 and May 1985. The list of trade union leaders and members who have disappeared or been kidnapped, assassinated or physically attacked appears in an annex to this report. [This list does not include persons already cited in other cases brought before the Committee on Freedom of Association.] 504. In its communication dated 24 July 1985, the WFTU refers to the kidnapping of trade union leader Felicita Floridalma Lucero, an allegation that was previously brought before the Committee in connection with Case No. 1195. 505. In its communication dated 4 September 1985, FASGUA alleges that on 1 September 1985 the body was discovered of Eleazar Esaú Barrera Martínez, an employee of the textile factory Fábrica de Tejidos Imperial who had been kidnapped during mass demonstrations against the increase in prices and in support of wage claims. According to FASGUA, his body was found hanging by the neck from an electric wire and bore signs of torture. 506. FASGUA adds that on the morning of 4 September 1985 nurse Rita Josefina Pineda Aldana was kidnapped by armed men. 507. Finally, FASGUA alleges that on 3 September 1985, 500 members of the National Army supported by 12 artillery trucks and about 20 tanks launched an attack on the University of San Carlos and searched every building, including the headquarters of the University Workers' Union where they caused extensive damage and seized trade union documents. C. The Government's reply 508. The Government states in its communications dated 28 August 1985 that all the complaints concerning alleged violations of freedom of association communicated to it by the ILO have been passed on to the Ministry of the Interior with instructions to transmit to the Committee on Freedom of Association any information that may come to light as a result of its inquiries. 509. The Government adds that a copy of the statement it received to the effect that Floridalma Lucero y Lucero and Amancio Samuel Villatoro had disappeared has been communicated to the competent tribunal and that investigations are being conducted to determine their whereabouts. With respect to the disappearance of Julián Revolorio, Raymundo Pérez, Yolanda Urizar Martínez de Aguilar, Manuel Francisco Contreras, José Luis Ramos, Luis Estrada, Victor Ascón, Lucrecia Orellana, Graciela Samayoa and her children, Fermín Solano, Antonio Argüeta and Sergio Venicio Samayoa Morales, the Government states that none of the persons cited are being held in any of the country's detention centres but that inquiries are being made into their whereabouts. The Government indicates that, in the case of investigations of this nature, the judiciary is duly informed by the General Directorate of the National Police through the competent tribunal. 510. The Government states further that it has collaborated closely with the judiciary and the Supreme Court of Justice in the investigations into disappearances and in the habeas corpus proceedings. The Head of State has accordingly set up a committee consisting of representatives of the Ministry of National Defence, the State Prosecutor's Office and the Ministry of the Interior to determine the whereabouts of the persons listed as having disappeared; in its efforts to arrive at the truth, the Committee has conducted an investigation throughout the country, issued the necessary orders to all state security forces and invited the civilian authorities to collaborate. It appears from the investigations that the persons whose names appear on the list submitted by the Mutual Support Group to the committee are not being held in any penal or preventive detention centre in the country. 511. The Government goes on to state that the investigations must be considered as being still under way since, inter alia, it has not yet been possible to obtain the list of Guatemalan citizens who have emigrated to Mexico in order to determine whether some of the persons who have disappeared are listed as official residents of that country. The Government indicates that, at the request of the interested parties and in accordance with the law, the State Prosecutor's Office has initiated penal proceedings with the Court of First Instance and with the Justices of the Peace of the Penal Branch of the Departments of Petén, Quetzaltenango, Zacapa and Guatemala City in connection with alleged kidnappings and has taken part in proceedings already initiated. The Government states that in the course of the investigations conducted in the various departments of the Republic, no allegations were made regarding the existence of detention centres other than the legally constituted penal centres for preventive detention and for the serving of prison sentences. 512. The Government declares that the committee has conducted a thorough official investigation at the national level, employing all possible means at its disposal, and that its report constitutes the most thorough investigation of the problem of "disappeared persons" that the present Government has carried out in its efforts to establish the facts. 513. Finally, with respect to the alleged closing down of operations at the Universal Textiles Factory, the Government states that the General Labour Inspectorate and the General Labour Directorate collaborated fully with the workers who had lodged a petition against its closure. According to the Government, the workers and the undertaking reached an agreement which included the payment of compensation. The only point on which agreement was not reached, despite the efforts of the General Labour Inspectorate, concerned five trade union leaders. Charges were accordingly brought against the undertaking in June 1985 with the competent labour tribunal which has not yet handed down its ruling. D. The Committee's conclusions 514. The Committee notes the Government's statement that the Head of State has set up a committee consisting of representatives of the Ministry of National Defence, the State Prosecutor's Office and the Ministry of the Interior to determine the whereabouts of the persons listed as having disappeared and that the Committee has conducted a nation-wide investigation with the collaboration of the civilian and military authorities. The Committee also notes that, according to the Government, the persons listed as having disappeared are not being held in any penal or preventive detention centre. 515. The Committee notes that, according to the Government, inquiries have been made into the whereabouts of trade union leaders Felicita Floridalma Lucero y Lucero, Amancio Samuel Villatorio and Sergio Vinicio Samayoa Morales. The Committee also notes the Government's statement that it has not yet been possible to establish the whereabouts of other kidnapped trade union leaders and members (Julián Revolorio, Raimundo Pérez, Yolanda Urízar, Manuel Francisco Contreras, José Luis Ramos, Luis Estrada, Víctor Ascón, Lucrecia Orellana, Graciela Samayoa and her two children, Fermín Solano and Antonia Argüeta). The Committee regrets that the Government has not supplied any details on the other 31 trade union leaders and members who have disappeared or on the alleged assassination of 13 trade union leaders and members and physical attacks on another union leader. The Committee further recalls that it had requested the Government to conduct a judicial inquiry into the attempted kidnapping and physical attacks on former trade union leader Alvaro René Sosa. 516. In these circumstances, the Committee recalls in general terms that when a climate of violence prevails in a country, this renders the exercise of trade union rights practically impossible and also recalls, as did the International Labour Conference in its 1970 Resolution concerning trade union rights and their relation to civil liberties, that the absence of civil liberties removes all meaning from the concept of trade union rights and that the rights conferred on workers' and employers' organisations must be based on respect for those civil liberties. It expresses its profound concern at the seriousness of a situation in which a large number of trade union leaders and members have been assassinated or have disappeared, particularly since some of the allegations date back several years and there is no sign of any improvement in the situation or of the facts being elucidated. 517. The Committee urges the Government once again to do its utmost to ensure that the investigations under way result in the establishment of the whereabouts of the trade union leaders and members listed in the annex to this report as having disappeared. The Committee requests the Government to ensure that these investigations cover all the trade unionists listed as having disappeared who have been cited by the complainants and to inform it of the outcome. 518. With respect to the trade union leaders and members who have been assassinated or have suffered serious physical harm, the Committee notes that inquiries are being carried out by the administrative authorities. It urges the Government to carry out judicial inquiries in order to elucidate the facts in full, determine responsibilities and punish the guilty parties. The Committee requests the Government to keep it informed of the outcome. 519. With respect to the alleged closing down of operations at the Universal Textiles Factory in order to destroy the trade union, the Committee observes that the Government does not refer specifically in its statement to the alleged anti-union nature of the closure of the factory. The Committee therefore requests the Government to indicate the grounds for closing down operations at the factory. 520. Lastly, the Committee observes that the Government has not replied to the alleged attack on the headquarters of the San Carlos University Workers' Union by National Army troops, and the serious damage caused and the seizing of trade union documents. The Committee requests the Government to send its observations on the matter. The Committee's recommendations 521. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) The Committee recalls in general terms that when a climate of violence prevails in a country, this renders the exercise of trade union rights practically impossible and also recalls that the absence of civil liberties removes all meaning from the concept of trade union rights, and that the rights conferred on workers' and employers' organisations must be based on respect for those civil liberties. (b) The Committee expresses its profound concern at the seriousness of a situation in which a large number of trade union leaders and members have been assassinated or have disappeared, particularly since some of the allegations date back several years and there is no sign of any improvement in the situation or of the facts being elucidated. (c) The Committee urges the Government once again to do its utmost to ensure that the investigations under way result in the establishment of the whereabouts of the trade union leaders and members listed in the annex to this report as having disappeared. The Committee requests the Government to ensure that these investigations cover all the trade unionists listed as having disappeared who have been cited by the complainants and to inform it of the outcome. (d) With respect to the trade union leaders and members who have been assassinated or have suffered serious physical harm, the Committee notes that inquiries are being carried out by the administrative authorities. It urges the Government to carry out judicial inquiries in order to elucidate the facts in full, determine responsibilities and punish the guilty parties. The Committee requests the Government to keep it informed of the outcome. (e) With respect to the alleged closing down of operations at the Universal Textiles Factory in order to destroy the trade union, the Committee requests the Government to indicate the grounds for closing down operations at the factory. (f) Lastly, the Committee observes that the Government has not replied to the alleged attack on the headquarters of the San Carlos University Workers' Union by National Army troops, and the serious damage caused and the seizing of trade union documents. The Committee requests the Government to send its observations on the matter. ANNEX LIST OF TRADE UNION LEADERS AND MEMBERS WHO HAVE DISAPPEARED OR BEEN ASSASSINATED A. Persons listed as having disappeared on whom the Committee has already requested information from the Government 1. Julián Revolorio 2. Raimundo Pérez 3. Yolanda Azcón 4. Manuel Francisco Contreras 5. José Luis Ramos 6. Luis Estrada 7. Víctor Ascón 8. Lucrecia Orellana 9. Graciela Samayoa and her two children 10. Fermín Solano 11. Antonia Argüeta 12. Sergio Vinicio Samayoa Morales 13. Felicita Floridalma Lucero y Lucero 14. Sr. Oscal 15. Cecilio Tejax Coj 16. José Guillermo Bran 17. Miguel Angel Gómez 18. José Luis Vilargrán 19. José Guillermo García According to the ICFTU, the body of this trade union leader was discovered on 23 September 1983 and bore signs of torture. 20. Alejandro del Cid Hernández 21. Amancio Samuel Villatoro 22. Misquisidet Miranda 23. Sergio Manfredo Peltetón 24. Sergio Aldana Galván 25. Edgar Fernando García 26. Alfredo Aguilar Tzoc 27. Alejandro Hernández González 28. Otto René Estrada 29. Rubén Amilcar Farfán 30. Armando Ramírez Peña B. Persons whose disappearance has been alleged recently 31. Julio César Pérez Gálvez (24 August 1980) 32. Ileana Minera (24 August 1980) 33. Miguel Guerra Duarte (March 1981) 34. Abner Recinos Alfaro (11 August 1981) 35. Juan José Alvarado (24 December 1981) 36. Marta Lares Huitz (5 August 1982) 37. Carmen Yolanda Mayorga (10 August 1982) 38. Amanda de Díaz (27 September 1983) 39. Julio Cermeño (17 November 1983) 40. Alfonso Alvarado Plascencio (1 February 1983) 41. Víctor Hugo Quintanilla and his wife (19 February 1983) 42. Jerónimo López Díaz (14 August 1983) 43. Edgar Morales Arias (13 January 1985) 44. Carlos Humberto Carballo (17 January 1985) 45. Rita Josefina Pineda Aldana (4 September 1985) C. Persons who have been assassinated or seriously wounded 46. Máximo Vásquez Melgar (union leader assassinated on 5 May 1980) 47. Gabriel Guzmán (union leader assassinated on 5 November 1981) 48. Israel Rodríguez (union leader assassinated on 5 November 1981) 49. Julio Raúl Calito Ardón (union leader assassinated on 1 January 1982) 50. Edgar López Figueroa (union leader assassinated on 16 January 1982) 51. Rubia Dorina García (trade unionist assassinated on 5 March 1982) 52. Joaquín Darío Sagastume (trade unionist assassinated on 5 August 1982) 53. Vicente Ordóñez (trade unionist assassinated on 13 August 1983) 54. Marcelino Velázquez (trade unionist assassinated on 14 August 1983) 55. Santiago López Aguilar (trade unionist assassinated on 17 February 1984) 56. Alvaro René Sosa Ramos (former union leader who was the victim of an attempted kidnapping and received three bullet wounds on 13 March 1984) 57. Silvio Matricardi (union leader whose body was discovered on 16 March 1984) 58. Aurelio Coto Melgar (trade unionist whose body was discovered on 14 March 1985) 59. Sebastián Quino Guarcas (union leader seriously wounded by government security forces on 23 May 1985) 60. Esaú Barrera Martínez (trade unionist assassinated on 1 September 1985). Cases Nos. 1204, 1275, 1301, 1328 and 1341 COMPLAINTS AGAINST THE GOVERNMENT OF PARAGUAY PRESENTED BY THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE LATIN AMERICAN CENTRAL OF WORKERS AND THE INTERNATIONAL FEDERATION OF PLANTATION, AGRICULTURAL AND ALLIED WORKERS 522. The International Confederation of Free Trade Unions presented the complaints corresponding to Cases Nos. 1204 (communications dated 20 and 27 May and 13 and 16 October 1983), 1275 (communication dated 17 April 1984), 1301 (communications dated 6 and 25 September 1984), and 1341 (communication dated 24 June 1985). The Latin American Central of Workers (CLAT) presented the complaint corresponding to Case No. 1328 in a communication dated 6 April 1985. 523. Having received certain observations from the Government, the Committee examined Cases Nos. 1204 and 1275 at its meeting in November 1984, and submitted interim reports to the Governing Body [see 236th Report of the Committee, paras. 426 to 443 and 444 to 458, approved by the Governing Body at its 238th Session (November 1984)]. 524. The Government representative at the 71st Session of the International Labour Conference (June 1985) subsequently handed in a number of documents containing certain information relating to Cases Nos. 1204, 1275 and 1301. 525. At the 71st Session (Geneva, 1985) of the International Labour Conference, the Government representative of Paraguay informed the Committee on the Application of Standards that his Government had requested a direct contacts mission to deal specifically with the application of Conventions Nos. 87 and 98 (both ratified by Paraguay). 526. Following the discussion of the case of Paraguay in the Committee on the Application of Standards, the Government presented a communication dated 20 June 1985 to the Office, expressly requesting that the forthcoming direct contacts mission would also examine the cases pending before the Committee on Freedom of Association. 527. The Director-General of the ILO appointed Mr. von Potobsky, a former official of the ILO, as his representative to carry out this mission, which took place from 23 to 27 September 1985 in Asunción, and which also included a visit to Buenos Aires on 21 September for the purpose of contacting and discussing with the Paraguayan Confederation of Workers in Exile (CPTE). The representative of the Director-General was accompanied on the mission by Mr. Alberto Odero, a member of the Freedom of Association Branch of the Department of International Labour Standards, and Mr. Luis Zamudio, Regional Adviser on Standards. The report on the mission is attached. 528. Paraguay 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). * * * 529. Following the mission, the International Confederation of Free Trade Unions (ICFTU) and the International Federation of Plantation, Agricultural and Allied Workers (IFPAAW), in communications dated respectively 2 and 3 October 1985, presented new allegations in connection with Case No. 1341. These organisations alleged in their communications that Marcelino Corazón Medina, chairman of the Co-ordination Committee of Agricultural Producers, has been detained for over ten days, having been arbitrarily imprisoned in the police station in Asunción, where he is being subjected to physical and psychological torture and deprived of visiting rights. He is now on a hunger strike and, since he is in a fragile state of health, it is feared that his life is in danger. In a communication dated 15 October l985, the ICFTU states that Mr. Corazón Medina has been transferred, in a serious condition, to the prison hospital. In addition, it alleges that for about 30 days the Government has arbitrarily imprisoned Sebastián Rodríguez (Secretary General of the Drivers' Trade Union of "Asunción-Fernando de la Mora" Line 21) for the sole reason of having organised a musical festival to raise funds for his unemployed colleagues. The Government sent certain information in a communication dated 30 October 1985 in which it states, in particular, that Mr. Marcelino Corazón Medina has been released. * * * 530. The Committee would first like to thank Mr. Geraldo von Potobsky for having accepted to carry out the direct-contacts mission, and for his detailed report on the cases under consideration, which has enabled the Committee to examine them. The Committee considers that the report of the representative of the Director-General demonstrates the usefulness of missions of this kind in clarifying the issues raised in the allegations of the complainant organisations. 531. Since the contents of the allegations and the information supplied by the Government, as well as the information obtained by the representative of the Director-General during the mission, are covered in the report on the mission, the Committee may proceed directly with its conclusions on each case. A. General conclusions 532. The Committee takes note of the report of the representative of the Director-General on the mission carried out from 23 to 27 September 1985 in Paraguay. The Committee also notes that, as the report on the mission states, the representative of the Director-General was provided with every facility by the authorities of the Ministry of Justice and Labour to enable him to carry out the mission. The Committee observes in this respect that information was obtained during the mission on all of the cases under consideration. It regrets, however, that it was not possible to arrange an interview between the representative of the Director-General and the Minister of the Interior or a high official of that ministry, in connection with certain specific allegations falling within its sphere of competence which were made in the context of Cases Nos. 1204 and 1341. B. Conclusions on Case No. 1204 533. Regarding the allegations as to detentions, the Committee observes that all of the persons concerned (nine) have been released. The Committee regrets that the Government has failed to state the specific reasons for the detention of these persons, except in the case of Mr. Aldo Zuccolillo (detained for systematically and crudely harassing the Government in the publication "ABC Color") and of Mr. Jorge Alvarenga (a doctor detained for acts unrelated to trade unionism, according to the information supplied by the Government). The Committee also observes that the Government denies in every case, either explicitly or implicitly, that the detentions were connected with trade union activities. In these circumstances, in view of the lack of information in most cases on the specific reasons for the detentions, and given the time which has elapsed since the allegations were presented (May and October 1983), and the fact that all of the persons concerned have been released, the Committee draws attention in general terms to the principle that the arrest or detention of trade union leaders and trade unionists for activities connected with the exercise of trade union rights is contrary to the principles of freedom of association [see, for example, 218th Report, Case No. 1129 (Nicaragua), para. 477]. 534. As regards the difficulties encountered by the Union of Journalists of Paraguay (SPP) for several years in its attempts to obtain legal personality, the Committee observes that in 1983 the Labour Directorate notified the trade union that it could not be set up because of defects of substance such as the existence of another association for the same purposes. The Committee also notes that there seems to have been a shift in the Government's position since then, since while it states that the SPP has not taken any steps since 1979 for its establishment, it affirms expressly that, from the legal standpoint, there is no reason why it should not be set up. While the Committee regrets that the present secretary-general of the SPP did not attend the appointment arranged with the representative of the Director-General, it hopes that the Union of Journalists of Paraguay will apply for and be granted legal personality in the near future. In addition, the Committee recalls that the existence of an organisation in a determined occupation should not constitute an obstacle to the establishment of another organisation, if the workers so wish. 535. As regards the allegation of dismissal of workers from the "América Textil" undertaking, the Committee observes that there is a discrepancy between the contents of the allegations and the Government's statements. While both agree that dismissals occurred in this undertaking, the complainant organisation alleged that they had taken place after the presentation of requests in the trade unions' list of claims. The Government, however, stated that the dismissals (affecting 27 workers) had taken place a month before the trade union had applied to the authorities for recognition. The Committee regrets that the América Textil undertaking has refused to meet with the representative of the Director-General of the ILO and that it has not been possible to obtain information which would clarify the facts. In these circumstances, in view of the lack of sufficient information and given the proximity in time between the dismissals and the steps taken to set up a trade union in the undertaking concerned (a trade union which was not recognised because it failed to attain the number of members required by legislation, owing to the dismissals which took place), the Committee merely draws attention to the principle that no worker should be dismissed or subjected to other acts of discrimination in employment for carrying out trade union activities. 536. Finally, the Committee notes that, according to the Government, there is no undertaking called "FRISA S.A." and that Radio Ñanduti was closed down not for the reasons given by the complainant organisation, but for political reasons. C. Conclusions on Case No. 1275 537. The Committee notes that, according to the mission report, the Labour Appeals Court, by decision of 27 December 1984, decided in favour of the claims of the Union of Employees of the Bank of Brazil on the matters in dispute regarding the renewal of the collective agreement. 538. As regards the dismissal of trade unionists Duarte, Virgili and Cáceres, the Committee notes the information provided in the report of the representative of the Director-General. In view of the fact that this case is pending judgement in court, the Committee adjourns examination of this matter until judgement is pronounced and requests the Government to transmit a copy of the judgement as soon as it is handed down. D. Conclusions on Case No. 1301 539. The Committee observes that in this case the complainant organisation has alleged that, between 18 August and 10 September 1984, Melanio Morel, Gregorio Ojeda, Pedro Zárate, Carlos Castillo and Nicasio Guzmán, all of whom are trade union leaders or trade unionists belonging to the National Union of Construction Workers (SINATRAC) were detained while setting up a trade union in the ACEPAR iron and steel plant. The Committee also observes that three of these persons met with the representative of the Director-General and stated the following: (1) they had intended to set up a works committee in the undertaking which was building the ACEPAR plant; (2) on 18 August 1984, as they were preparing for an assembly which they had called at the bus stop near the ACEPAR plant, and after they had been warned by the police that they should not hold the assembly, they were detained by members of the armed forces; and (3) they had not been brought to trial. 540. The Committee notes that, according to the authorities of the Ministry of Justice and Labour with whom the representative of the Director-General met, ACEPAR is a semi-public undertaking located in the military zone and run by military personnel. Moreover, according to the ministry authorities, the assembly which had been called was unauthorised and therefore could not be held. The organisers of the assembly had consequently been detained by the armed forces. They were later released without having been brought to trial. 541. Although the Committee considers the fact that the legislation of a country, in order to prevent disruption of the public order, requires administrative authorisation for the organisation of meetings in public places does not run counter to the principles of freedom of association, it wishes to draw attention to the fact that given the absence of criminal acts in the present case, the mere fact of having organised a trade union assembly should not have resulted in the detention of the trade union leaders and trade unionists involved. Therefore, the Committee regrets the detention of these trade union leaders and trade unionists and draws the attention of the Government to the fact that detention of trade union leaders for activities connected with the exercise of trade union rights is contrary to the principles of freedom of association [see, for example, 218th Report, Case No. 1129 (Nicaragua), para. 477]. Furthermore, in view of the fact that the period of detention lasted more than 20 days, and that none of the trade unionists was brought to trial, the Committee would emphasise the principle that any person who is detained should immediately be brought before the competent court. 542. Finally, the Committee notes that, according to the detainees themselves, they were not dismissed, as they do not work in an employment relationship but as a crew engaged under a contract for services, although since being detained they have been unable to obtain contracts with building enterprises, only with individuals. The Committee also notes that, according to the authorities, the persons concerned do not appear to be actually working in the construction industry. E. Conclusions of the Committee on Case No. 1328 543. The Committee observes that the complainant organisation mainly objects to the recognition by the Ministry of Labour on 17 October 1984 of the executive committee elected at an assembly to reorganise the National Union of Construction Workers (SINATRAC), held on 13 October 1984 and led by the Secretary-General of that organisation, Milciades Giménez Díaz, a supporter of government policy. 544. The Committee also observes that, some months earlier, on 11 March 1984, a split occurred in the executive committee of SINATRAC, dividing it into two different factions: one headed by Milciades Giménez Díaz, Secretary-General of SINATRAC, and the other by Lino Gómez, Deputy Secretary-General of SINATRAC. Each faction organised an assembly to elect a new executive committee, as the term of office of the existing committee was due to expire on 18 October 1985. Thus, the faction led by Milciades Giménez Díaz called an assembly on 13 October 1984, while the faction led by Lino Gómez called another for 14 October 1984, although the latter was postponed by the police and was held on 21 October 1984. 545. On 17 October 1984, as stated, the Government recognised the executive committee elected at the assembly of 13 October 1984 led by Milciades Giménez Díaz. However, when it was informed of the executive committee elected on 21 October 1984 at the assembly led by Lino Gómez, the competent authority of the Ministry of Justice and Labour notified Lino Gómez on 21 November 1984 of the text of a decision of the legal consultant's office stating that recognition could not be granted since "by Resolution No. 1717 dated 17 October of the current year the Labour Directorate registered the National Union of Construction Workers, whose executive committee is currently in office, and its term of office is due to expire in 1987 according to its statutes". A subsequent decision issued by the legal consultant's office, notified by the Director of Labour on 15 February 1985, stated that an appeal could be lodged through the administrative disputes procedure. 546. The Committee concludes that the authorities of the Ministry of Justice and Labour, aware of the existence of two assemblies to elect a new executive committee, appear to have based their recognition of one of the committees on considerations of time alone, that is, on the fact that the executive committee elected at the assembly led by Milciades Giménez Díaz was the first to apply for recognition. The Committee observes that the competent authorities of the Ministry of Justice and Labour, referring to the allegations, told the representative of the Director-General that the situation was sometimes confusing, in the general context of the internal disagreement among the members of the executive committee of SINATRAC. According to the ministry authorities, once Lino Gómez had been informed of the decision to recognise the executive committee elected on 13 October 1984, he could have lodged an administrative appeal against that decision. 547. The Committee considers that, irrespective of whether such an appeal was possible (which Lino Gómez's group denies), the decision of 17 October 1984 of the Ministry of Justice and Labour to recognise the executive committee elected by the assembly of 13 October 1984 constitutes a decision that was arbitrary and taken in too great haste. The Ministry was fully aware that another duly convened assembly was to be held a few days later (on 21 October) for the same purpose. The Committee would like to point out that when internal disputes arise in a trade union organisation they should be resolved by the persons concerned, by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities. F. Conclusions on Case No. 1341 548. The Committee observes that the representative of the Director-General was able to note the police surveillance and shadowing to which Ricardo Esperanza Leiva, former leader of the Liebig Refrigeration Union and leader of the Paraguayan Confederation of Workers in Exile (CPTE), is being subjected. The Committee requests the Government to alter what it calls the methods of protecting the life and safety of Mr. Leiva so that, if considered objectively, there can be no confusion with police surveillance. 549. Furthermore, the Committee notes that, according to the Government, Mr. Marcelino Corazón Medina has been released. The Committee requests the Government to send its observations on the alleged torture of this trade union leader indicating what were the concrete facts leading to his detention, as well as on the alleged detention of Sebastián Rodríguez, Secretary-General of the Drivers' Union of Line 21. The Committee's recommendations 550. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions: The Committee notes that a direct contacts mission visited the country from 23 to 27 September 1985. Case No. 1204 (a) The Committee draws attention in general terms to the principle that the arrest or detention of trade union leaders and trade unionists for activities connected with the exercise of trade union rights is contrary to the principles of freedom of association. (b) In view of the fact that, according to the Government, there is no reason from the legal standpoint why the Union of Journalists of Paraguay should not be set up, the Committee hopes that this union will apply for and be granted legal personality in the near future. (c) The Committee draws attention to the principle that no worker should be dismissed or subjected to other acts of discrimination in employment for carrying out trade union activities. Case No. 1275 (a) The Committee notes that, according to the mission report, the Labour Appeals Court, by decision of 27 December 1984, decided in favour of the claims of the Union of Employees of the Bank of Brazil on the matters in dispute regarding the renewal of the collective agreement. (b) The Committee notes that the matter of the dismissal of trade unionists Duarte, Virgili and Cáceres is pending judgement in court. The Committee adjourns its examination of this matter until judgement is pronounced, and requests the Government to transmit a copy of the judgement as soon as it is handed down. Case No. 1301 (a) The Committee regrets the detention of five trade union leaders and trade unionists of the National Union of Construction Workers. (b) The Committee reiterates the principle that the detention of trade union leaders for activities connected with the exercise of trade union rights is contrary to the principles of freedom of association. (c) In view of the fact that the period of detention lasted more than 20 days and that none of the five trade unionists was brought to trial, the Committee stresses the principle that any person who is detained must be brought without delay before the competent court. Case No. 1328 (a) The Committee considers that the decision of 17 October 1984 of the Ministry of Justice and Labour to recognise the executive committee of SINATRAC, elected by the assembly held on 13 October 1984, taken in full awareness that another regularly convened assembly was to be held for the same purpose a few days later on 21 October, constitutes an arbitrary and too speedy decision. (b) The Committee draws attention to the fact that when internal disputes arise in a trade union organisation, they should be resolved by the persons concerned, by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities. Case No. 1341 (a) The Committee requests the Government to change what it calls the methods of protecting the life and safety of Mr. Leiva so that, if objectively considered, there can be no confusion with police surveillance. (b) The Committee notes that Mr. Marcelino Corazón Medina has been released. The Committee requests the Government to send its observations on the alleged torture of this trade union leader stating what were the concrete facts leading to his detention, as well as on the detention of Sebastián Rodríguez, Secretary-General of the Drivers' Trade Union of Line 21. ANNEX REPORT OF MR. GERALDO VON POTOBSKY ON THE DIRECT CONTACTS MISSION CARRIED OUT IN PARAGUAY (23-27 SEPTEMBER 1985) 1. At the 71st Session of the International Labour Conferenc (Geneva, 1985), the Government representative of Paraguay informed the Committee on the Application of Conventions and Recommendations that "his Government has requested a direct contacts mission to deal specifically with the application of Conventions Nos. 87 and 98" (both ratified by Paraguay), and pointed out that "the direct contacts will be carried out with the presence of the three groups (government, employers' organisations and workers' organisations). The Workers' member of Austria (Mr. Maier) "hoped that when the direct contacts mission went to Paraguay it would also deal with the cases pending before the Committee on Freedom of Association". 2. For their part the Workers' members of Uruguay and Argentina expressed their hope that the mission would be able to make contact with the Paraguayan Confederation of Workers in Exile. 3. Following the discussion of the case of Paraguay in the Committee on the Application of Conventions and Recommendations, the Government sent to the Office a communication dated 28 June 1985 in which it expressedly requested that the direct contacts mission to be carried out should also examine the cases pending before the Committee on Freedom of Association. 4. The Director-General of the ILO appointed me as his representative to carry out this mission, which took place between 23 and 27 September in Asunción and which also included a visit to Buenos Aires on 21 September with a view to establishing contact and holding discussions with the Paraguayan Confederation of Workers in Exile (CPTE). I was accompanied on the mission by Mr. Alberto Odero, member of the Freedom of Association Branch of the International Labour Standards Department, and by Mr. Luis Zamudio, Regional Adviser on standards. 5. During the mission we met Mr. Eugenio Jacquet, Minister of Justice and Labour, and Mr. Carlos Doldán del Puerto, Director of Labour, and had several meetings with the latter and his collaborators. We also spoke with representatives of the Paraguayan Confederation of Workers (CPT), the Federation of Production, Industry and Commerce (FEPPINCO), the Paraguayan Industrial Union, the Federation of Bank Employees (FETRABAN) and the National Union of Building Workers (SINATRAC) as well as other trade union leaders, trade unionists and interested parties. The list of these persons appears at the end of this report. 6. It was not possible to arrange a meeting with the Minister of the Interior or any other high official of this Ministry, before whom we should have liked to place certain specific allegations falling within their sphere of competence (Cases Nos. 1204 and 1341) in order to obtain information and comments. 7. During the meeting with the Paraguayan Confederation of Workers in Exile (CPTE), its leaders provided us with information on the trade union situation in their country and expressed their surprise that this had been the first time that the ILO was carrying out a mission of this kind in Paraguay. Furthermore, they made a formal observation concerning the time which had elapsed concerning the examination of the complaints presented. Finally, they requested that the Ministry of Justice and Labour should be informed concerning the imminent return to the country of Mr. Julio Etcheverry Espínola, Secretary-General of the organisation, who hoped to be able to enjoy all his constitutional rights. The Minister of Justice and Labour stated that Mr. Etcheverry would enjoy these rights like any other citizen, provided that he observed the law of the country. 8. I should like to place on record that I was given every assistance by the authorities of the Ministry of Justice and Labour in carrying out the mission for which I am extremely grateful. I should also like to thank all those persons interviewed for the information which they provided. 9. The present report includes various documents which we received during the course of the mission for the purposes of our inquiry. Cases pending before the Committee on Freedom of Association 10. At present five complaints against the Government of Paraguay (Cases Nos. 1204, 1275, 1301, 1328 and 1341) are pending before the Committee on Freedom of Association. The Committee examined Cases Nos. 1204 and 1275 at its meeting of November 1984 (see 236th Report of the Committee, paragraphs 426-44 and 448-458) and presented an interim report to the Governing Body since the Government had not responded to certain matters or was requested to provide additional information. 11. The Government representative to the 71st Session of the International Labour Conference handed the Office a series of documents which contained information concerning Cases Nos. 1204, 1275 and 1301. No observations from the Government were received concerning Cases Nos. 1328 and 1341. 12. During the mission we discussed the matters raised in the cases before the Committee on Freedom of Association with officials of the Ministry of Labour and various interested parties. Case No. 1204 13. This complaint was presented by the International Confederation of Free Trade Unions in communications dated 20 and 27 May, 13 October and 16 December 1983. The Government sent certain observations in a communication dated 14 September 1984. The Committee on Freedom of Association examined the case, as already noted, at its meeting of November 1984 and made the following recommendations which summarise with sufficient clarity the matters which remained pending (see 236th Report, paragraph 443): (a) Regarding the arrest of 19 members of the the Trade Union Solidarity Movement (MSS) as part of a campaign of repression following the setting up of this organisation, the Committee observes that, according to the Government, one of the persons concerned is a fugitive from justice who has not been arrested and 13 others were released without the judicial authorities upholding any charges against them. The Committee deeply regrets that these 13 trade unionists were deprived of their freedom for more than a year in most cases and draws the Government's attention to the fact that the arrest and detention of trade union leaders and trade unionists for trade union reasons constitute a violation of the principles of freedom of association. The Committee requests the Government to send its observations on the arrest of Stella Rufinelli, Margarita Elías, Damián Vera, Juan Carlos Oviedo and María Herminia Feliciangeli following the setting up of the MSS of which they are said to be members. (b) The Committee regrets that the Government has not replied to the remaining allegations: the difficulties encountered by the Union of Journalists of Paraguay (SPP) for the past four years in its attempts to obtain legal personality; the threatened exile of the leaders and members of the SPP; the arrest and trial of the leader of the SPP, Alcibiades González del Valle; the arrest of Aldo Zucalillo, director of ABC Color for allowing the publication of matters of trade union interest; the threats against, harassment of and restrictions imposed on this newspaper for publishing the setting up of the MSS; the arrest of Dr. Jorge Alvarenga and Dr. Carlos Cuevas during a round-table discussion on "trade unionism and repression"; the arbitrary dismissal of the workers from the La Americana SA textile company following the submission by the trade unions of a list of demands; the threatened dismissal of 800 workers of the FRISA SA company following the request by the trade unions for payment of unpaid wages; the closing down of Radio Ñandutí for transmitting messages from the Paraguayan Confederation of Workers in Exile and a ban on the commentator and director of the radio station from exercising his profession. The Committee requests the Government to send its observations on this matter without delay. 14. The Government provided the following information during the 71st Session of the International Labour Conference: - All the persons arested for infractions of Act No. 209 to which the complainant had referred are now free. María Herminia Feliciangeli was held under arrest between 11 May and 18 September 1983; Margarita Elías Acosta, from 11 May to 18 September 1983; María Estela Rufinelli, from 11 to 30 May 1983; Juan Carlos Oviedo, from 11 to 16 May 1983; and Pedro Damían Vera, from 12 to 24 May 1983. - The Union of Journalists of Paraguay requested its recognition in 1979. The authorities noted substantial errors in the setting up of the trade union which needed to be remedied; in particular, an association with the same objectives, called the Press Association of Paraguay, already existed and furthermore opposed the establishment of a new trade union; moreover, there was no unanimous agreement between the supporters of the trade union concerning its creation since a group of journalists opposed its establishment. In the circumstances, the Labour Directorate informed the applicants on 6 September 1983 that they would first of all have to resolve their existing internal problems before any decision could be taken concerning the recognition of the union. Since then, none of the necessary formalities has been taken with a view to the registration of the union. - Carlos Cuevas Miranda, a doctor, was arrested on 4 July 1983. Legal proceedings were initiated against him for infraction of Act No. 209. He was released from prison on 11 July 1983 on the instructions of the Judge of the Penal Court of the First Instance and at the present time is living and exercising his profession near Caaguazú. - Jorge Alvarenga Galeano, who was born in Buenos Aires, was arrested on 22 June 1983 opposite the Faculty of Engineering, for shouting slogans against the country, the Government and the authorities whilst meeting with a group of students who had been suspended by the rector of the National University. On 5 July 1983 he was deported to Buenos Aires but re-entered Paraguay on 6 February 1984 and left again on his own initiative on 10 February 1984 without any intervention by the Paraguayan authorities. - In the América Textil undertaking a trade union requested recognition of its occupational status on 26 December 1979. The Labour Inspectorate observed that it did not have the number of members required by law since a large number of the applicants were in fact workers who had been dismissed or who had received advance notice of dismissal. Subsequently, no new steps have been taken with a view to its registration. - With respect to the allegation concerning the FRISA SA undertaking, no information is available in the Labour Directorate concerning the threats of dismissal alleged by the complainant. 15. During the mission we were able to gather the following information on these various matters. 16. With regard to the alleged detention of Stella Rufinelli and four other persons following the establishment of the MSS, the authorities of the Ministry of Justice and Labour stated that these persons were free (in conformity with the information supplied by the Government representative to the 71st Session of the International Labour Conference), that they had been arrested during an investigation into the "Paraguayan Data Bank" affair and that they were never taken to court. We were informed that the "Paraguayan Data Bank" was an intelligence unit which acted as the headquarters for conspiratorial activities of a Marxist-Leninist nature. Under the cover of its supposed data processing activities, its real function was of a subversive nature. 17. As regards the alleged difficulties of the Union of Journalists of Paraguay (SPP) over the past four years to obtain legal personality, the authorities of the Ministry referred to the information supplied by the Government representative to the 71st Session of the International Labour Conference and stressed that this trade union had taken no new steps with a view to obtaining legal personality and that there was no legal impediment to the establishment of the trade union. We invited Mr. José Gaspar Meaurio, the current Secretary-General of the trade union, to a meeting to discuss these matters, but he did not attend. As regards the arrest and prosecution of Mr. Alcibiades González del Valle, leader of the Union of Journalists of Paraguay, the authorities of the Ministry pointed out that this person is free and freely exercising his professional activity at the present time. In the past he had been arrested on several occasions but never for trade union reasons. It should be noted that Mr. González del Valle, who is no longer the Secretary-General of the Union of Journalists of Paraguay, was invited to meet with the representative of the Director-General of the ILO but did not come. 18. As regards the arrest of Mr. Aldo Zuccolillo, Director of the newspaper ABC Color, for permitting publications on trade union events, the authorities of the Ministry pointed out that the reason for the arrest was not that given by the complainant but rather his systematic and abusive harassment of the Government. Furthermore, they emphasised that Mr. Zuccolillo had never allowed the establishment of any trade union in the undertakings of which he is the owner. Finally, they stated that trade union newspapers which published articles of a critical nature existed in the country and that such publications had never been the subject of any penalties or warnings. 19. As regards the arrest of Messrs. Carlos Cuevas and Jorge Alvarenga Galeano, the authorities of the Ministry stated that they were not trade unionists, that their detention was not related to trade union matters and that they were released without legal proceeding being brought against them. 20. As regards the alleged arbitrary dismissal of workers of the América Textil undertaking following the submission by the trade unions of a list of demands, the authorities of the Ministry stated that 27 workers were dismissed in December 1979. In January 1980 a works union requested recognition in the Ministry but this was refused since of its founding members only 12 were actually employed (the Labour Code stipulates a minimum number of 30). In any event, the dismissed workers accepted the legal indemnities. It should be noted that the América Textil undertaking refused to meet with the representative of the Director-General of the ILO. 21. As regards the allegations concerning the FRISA S.A. undertaking, the authorities of the Ministry stated that no undertaking existed with that name. 22. Finally, with respect to the closing down of the Ñandutí radio station, the authorities of the Ministry denied that the reason for this action was the transmission of messages from the Paraguayan Confederation of Workers in Exile. The radio station was closed for political reasons. They stated that in Paraguay radio stations are not closed down for giving news or messages of a trade union nature. Case No. 1275 23. This complaint was presented by the International Confederation of Free Trade Unions in a communication dated 17 April 1984. The Government sent certain observations in a communication dated 14 September 1984. The Committee on Freedom of Association examined the case, as noted earlier, at its meeting of November 1984, and made the following recommendations which summarise with sufficient clarity the matters which remained pending (see 236th report, paragraph 458): (a) The Committee expresses the hope that the Labour Court will shortly decide the points of contention in connection with the renewal of the collective agreement between the Union of Employees of the Bank of Brazil and this same bank, which expired on 30 January 1983. It draws attention to the obligation on both employers and trade unions to bargain in good faith to reach an agreement and stresses that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence. The Committee requests the Government to inform it of the Labour Court's decision on this case. (b) The Committee requests the Government to inform it of the outcome of the judicial appeal concerning the dismissal of Messrs. Rolando Duarte, Adolfo Virgili y Guillermo and Guillermo Cáceres, members of the Union of Employees of the Bank of Brazil. 24. The Government had sent copies of certain documents concerning the alleged dismissals, but had not sent the text of the judgement. Neither had it sent the text of the judicial decision on the points of contention related to the renewal of the collective agreement. 25. During the mission we were able to gather the following information on these various matters. 26. The authorities of the Ministry of Justice and Labour provided the text of the decision of the Labour Appeal Court dated 27 December 1984 upholding the claims of the Union of Employees of the Bank of Brazil concerning the points of contention regarding the renewal of the collective agreement. The management of the Bank of Brazil and leaders of the Federation of Bank Employees pointed out that the Bank of Brazil and the trade union of this institution had recently signed a new collective agreement. 27. As regards the alleged dismissal of Messrs. Roland Duarte, Adolfo  Virgili and Guillermo Cáceres, members of the Union of Employees of the Bank of Brazil, the leaders of the Federation of Bank Employees who were interviewed stated that these dismissals were illegal since they violated the provisions of section 285 of the Labour Code (maintenance of the employment relationship during the settlement of labour disputes procedure). They pointed out that although the undertaking claimed that the dismissals were made in order to reduce costs they were, in fact, due to trade union activities. Messrs. Virgili and Cáceres were very active members of the trade union and Mr. Roland Duarte was its former Deputy Secretary-General. Furthermore, if the argument concerning the reduction of costs were true, the Bank could have dismissed other persons since 20 workers were nearing retirement and their departure from the undertaking would not have prevented them from receiving their legal retirement benefits. In the same way, when the arbitration award was made concerning the points of contention in the new collective agreement, and which upheld the claims of the trade union, the undertaking dismissed two further members. 28. The management of the Bank of Brazil denied that the dismissal of Messrs. Duarte, Virgili and Cáceres was of an anti-trade union nature or related to collective bargaining. All the workers of the Bank were members of the trade union and the dismissed workers were not members of the executive board of the trade union. The dismissal of the workers in question was due to administrative reasons and not to a reduction in costs and the workers concerned received the compensation prescribed by law. Subsequent to these measures there was only one other dismissal, that of a worker in another branch of the Bank, and the departure from the undertaking of a secretary by mutual agreement. The secretary went to work in another banking institution. 29. The authorities of the Ministry stated that no definitive ruling had been issued concerning the dismissals and that the judiciary had indicated that such a ruling was imminent. Cases Nos. 1328 and 1301 30. It appears appropriate to treat these two cases together and in the above-mentioned order because of the close relationship which exists between specific aspects of these cases and a full understanding of the matters in question. Case No. 1328 31. The complaint appears in a communication from the Latin American Central of Workers (CLAT) dated 6 April 1985. The Government has still not furnished a reply. 32. The CLAT alleges in particular that the authorities have limited the right of the National Union of Building Workers (SINATRAC) to elect its representatives in full freedom. 33. More precisely, the CLAT alleges that the Labour Directorate stated in a communication of September 1984 that the extraordinary assembly held on 11 March 1984 to replace the Secretary-General of SINATRAC, Mr. Milciades Giménez Díaz for failure to fulfil his duties, was null and void for procedural reasons. According to the complainant, the real reason for this measure was that the above-mentioned trade union leader supported the anti-trade union policy of the Government. CLAT encloses a copy of the communication from the Labour Directorate (dated 19 June 1984) in which it is stated that SINATRAC "should have justified previously that it had observed the provision of Article 6 of its by-laws. Thus the copy of the ABC newspaper presented contains only information of a journalistic nature which cannot be considered as the convocation of an assembly of its members which would have legal force". 34. CLAT adds that the ordinary general assembly of SINATRAC which had been called by the trade union executive for 14 October 1984 was suspended by the authorities. CLAT includes a copy of a communication from the Labour Directorate dated 31 October 1984 stating that those who called the assembly "were not accredited members of the trade union and thus are not empowered to call an assembly". 35. CLAT adds that the ordinary general assembly was then convened for 2l October 1984; it took place in normal conditions with the members of the union and presented in good time its request to the Labour Directorate for recognition of the executive committee. However, this request was rejected on the grounds that "an executive committee had already been recognised on the same date" when in fact - the complainant goes on - this had occurred without the convening of an assembly or the observance of any of the necessary requirements and within a period of 24 hours. As a consequence, a complaint was lodged which was not answered, thus preventing a discussion of the matter in other bodies, including in the courts (it should be noted that CLAT sends as an annexure a communication from the Labour Directorate which implicitly refers to the possibility of lodging an administrative appeal). 36. CLAT concludes by pointing out that the leader recognised by the authorities does not represent the working classes and has always acted like a vigilante against the interests of his trade union comrades. 37. In order to obtain information on this complaint, which basically deals with the rift which occurred in the executive committee of SINATRAC and its consequences, we consulted the representatives of both groups as well as the competent authorities of the Ministry of Justice and Labour. 38. We met with Messrs. Lino Gómez, Gregorio Ojeda and Melanio Morel, who stated that they were respectively Secretary-General, Assistant Secretary-General and Financial Secretary of SINATRAC. These persons belong to the group which presented the complaint to the ILO. They furnished us with various documents to support and supplement their oral statements. 39. According to the information provided, during the extraordinary assembly of 11 March 1984 the question was implicitly raised of unionising the workers of the Yaciretá dam and the private firm which was constructing the future plant of ACEPAR (Paraguayan Steelworks). All those present supported this action by the trade union although the Secretary-General, Mr. Melcíades Giménez Díaz, opposed it. The latter, having refused to read a document which was given to him concerning this matter, decided to leave the meeting accompanied by the Clerk, Mr. Sixto Fleitas. In the circumstances, the participants decided to elect Mr. Lino Gómez (who until then had been the Assistant Secretary-General) as the new Secretary-General. He was to exercise his mandate until the month of October 1984, when the term of the executive committee was due to expire. At the same time, the assembly reorganised the executive committee and sent the corresponding notice to the Labour Directorate with a view to obtaining recognition of this committee. 40. In reply, they were informed in a note of 19 June 1984 of the legal ruling of 7 June concerning the need to fulfil, before the holding of the assembly, the statutory regulations concerning the publication of the convocation in a newspaper. In a note of 3 July 1984, issued by the new executive committee, it was explained to the authorities of the Ministry of Justice and Labour that it had not been possible to publish the convocation due to lack of money but that the news item which had appeared in the ABC Color newspaper compensated for this shortcoming. Furthermore, approximately 80 members of the trade union out of a total of 120 had attended the assembly, which was well beyond the required quorum. Despite these explanations, the Labour Directorate issued a resolution dated 6 September 1984 which rejected the recognition of the executive committee and based its decision on the failure to observe the above-mentioned statutory provision. 41. In these circumstances, the complainants add, the failure to recognise this new Committee implied that the previous committee remained in existence. Seven members of this committee (out of a total of 11), including Messrs. Lino Gómez and Gregorio Ojeda, decided to convene an ordinary assembly of the trade union for 14 October 1984. This decision was communicated to the Ministry on 26 September and the convocation was published in a newspaper in accordance with the union's by-laws. In the same way notification was sent to the police which replied that the assembly would have to be postponed until 21 October. For its part, the Legal Department of the Labour Directorate decided that the applicants were not accredited members (of the executive committee) of the trade union, and thus could not convene the assembly. This decision was communicated to them on 31 October. The assembly took place on 21 October and recognition of the elected executive committee was requested in a note dated 24 October 1984. The competent authority of the Ministry replied by providing the text of another legal opinion which stated that, by Resolution No. 1717 dated 17 October 1984, recognition had already been granted to another executive committee of the trade union and that for this reason the applicants' request could not be accepted. 42. According to the complainants, what had in fact happened was that without their knowledge, another assembly had been held on 13 October 1984 which had been called by the members of the original executive committee who had remained in a minority. In the extraordinarily short period of four days, which is unprecedented, this new committee was recognised whereas normally such a process requires more than one month. This would also explain the instructions from the police to postpone the date of the assembly from 14 to 21 October. 43. The complainants state that they have never been able to obtain a copy of the text of the formal resolution which rejects their request for recognition of the executive committee elected at the assembly of 21 October 1984. They have presented and verified before the Ministry the request for recognition of this executive committee and the request for the annulment of the recognition granted to the committee elected on 13 October 1984 (notes dated 28 November and 23 January 1985). In the note dated 28 November it is stated that the so-called assembly of 13 October did not legally take place, that those who convened it did not have the power to do so, that they did not publish the convocation notice as required, that they did not have rosters available, were not up to date in their contributions and had not distrubuted circulars concerning the convocation. 44. In reply, the Ministry confirmed that the only legal recourse against the resolution to deny recognition in this case is the administrative procedure for disputes, in accordance with section 297 of the Labour Code (note dated 15 February 1985). According to the complainants, the initiation of this procedure requires access to the text of the formal resolution which they have unsuccessfully requested. 45. At the meeting held with Mr. Milcíades Giménez Díaz, who claimed to be the Secretary-General of SINATRAC, he referred to various aspects of the assembly of 11 March 1984. First of all, the resignation presented in February by Mr. Gregorio Ojeda, who was a member of the executive committee elected in 1982, was accepted. During the same assembly Mr. Pedro Zárate also presented his resignation. During the discussions a written note of accusation against Mr. Gímenez was presented by the complainants requesting his resignation as Secretary-General. It was suggested that he should read this note publicly but Mr. Gímenez refused to do so since the matter was not included on the agenda of the assembly. The text of the agenda was shown to us by Mr. Gímenez; it reads as follows: "(1) Report and appraisal of the financial situation by the Secretary of Finances for the 1983 exercise. (2) Election of a Deputy Secretary of Records and Relations, a Deputy Secretary of Finance and a Secretary responsible for the organisation of activities. (3) Election of four substitute members." Those who were insistent that the note should should be read included in particular Mr. Carlos Castillo, former Secretary-General, who had ceased to be a member of the trade union following his failure to pay trade union dues. 46. As a result of the rising tempers of the persons present and the resulting confusion, Mr. Gímenez Díaz decided to withdraw from the assembly, accompanied by the Clerk and the two inspectors of the Ministry of Justice and Labour who had been invited by the executive committee. The two latter officials informed the members that the assembly was suspended and that any decision taken by those present would have no legal effect. Approximately 50 persons remained in the meeting out of a total of 61 participants. The membership of the trade union at that time was 120. In the meeting which continued it was not possible to adopt any decision respecting the election of a new Secretary-General and the reorganisaion of the executive committee since these items were not included on the agenda. 47. Furthermore, Mr. Gímenez continued, it cannot be said that seven members out of a total of 11 of the executive committee elected in 1982 had remained as members of one of the two factions. In fact two of the seven had resigned or abandoned their functions before the assembly of 11 March 1984 (Florencio Benítez, Secretary of Records and Relations, Eustaquio Portillo, Deputy Secretary of Finances). The following therefore remained as members of the dissident group: Lino Gómez, Gregorio Ojeda, Justo Pastor Sosa, Pedro Zárate and Martín Chamorro. In Mr. Gímenez Díaz's group there remained, in addition to the latter, Sixto Fleitas, Antonio de la Cruz Benítez and Efigenio Fernández. According to Mr. Gímenez, this proves that the dissidents did not have the support of the majority of the members of the original executive committee to convene a subsequent extraordinary assembly of the trade union. 48. After the division occurred, Mr. Gímenez Díaz adds, that the premises of SINATRAC - an office in the headquarters of the Paraguayan Confederation of Workers - continued to be occupied by his group, which continued its trade union activities. With a view to normalising the situation, it was decided to hold an assembly for the reorganisation of the trade union, which took place in Villa Hayes on 13 October 1984. This city was selected since most of the members were employed there in the construction of the future ACEPAR plant. More than 200 members participated in the assembly. Circulars announcing the convocation were pinned up and distributed at the worksite. The assembly elected a new executive committee of which Mr. Gímenez Díaz is the Secretary-General. This committee was recognised by the Ministry of Justice and Labour. 49. In our conversations with the competent authorities of this Ministry we received documentation and we were given the following information on the events which had occurred. It was stressed that the situation was a confused one concerning an internal dispute between the members of the executive committee of SINATRAC. 50. On 11 March 1984 an extraordinary general assembly convened by the executive committee was held in the headquarters of the Paraguayan Confederation of Workers to examine the financial balance sheet presented by the Financial Secretary and to fill certain vacant posts on the committee. After the approval of the balance sheet and as the chairman was introducing the second item on the agenda (appointment to vacant posts), a group headed by Carlos Castillo, Gregorio Ojeda and Pedro Zárate provoked the incidents in question, disregarding the warnings made by the labour inspectors to keep to the items on the agenda. As the situation deteriorated, the inspectors withdrew from the premises, as did the president and secretary of the meeting, and the delegates of the CPT. 51. Later the group directed by Carlos Castillo, Gregorio Ojeda and Pedro Zárate held a so-called extraordinary general assembly, set up a so-called executive committee and requested its recognition before the Labour Directorate. This request was denied by Resolution No. 1502 dated 6 September 1984. Since that date the trade union had been without leadership. In these circumstances and with a view to the legal reorganisation of the trade union, a SINATRAC reorganisation committee was set up whose members were Milcíades Gímenez Díaz, Sixto Fleitas and Antonio de la Cruz Benítez, who had been members of the executive committee elected in January 1982. This reorganisation committee, with the collaboration of the CPT, called a general assembly on 1 October 1984 for the reorganisation of the trade union, to be held on 13 October in Villa Hayes. The convocation was not published in a newspaper for lack of money but notification was given in circulars, as verified by the labour inspectors. The assembly was monitored by officials of the Labour Directorate and proceeded to elect a new executive committee of the trade union which was duly recognised by the authorities by Resolution No. 1717 dated 17 October 1985. 52. As regards certain specific points, the labour authorities provided the following information. The executive committee elected in the assembly of 11 March 1984 was not recognised because it had not complied with the provisions of Article 6 of the SINATRAC by-laws, which read as follows: "The convocation of an assembly of members shall be communicated to members by means of circulars distributed at the workplaces and in the work committees and by publication in a newspaper of the capital at least eight days beforehand." As regards the request for recognition of the executive committee resulting from the assembly of 21 October 1984 and the annulment of the recognition granted to the committee elected at the assembly of 13 October 1984, the Labour Directorate considers that this is an appeal for annulment requiring the Directorate to annul a decision which it had previously taken. This kind of appeal is not applicable in such cases and is not included in any regulation for these purposes. What is applicable under the established procedure (Decree No. 3696 dated 24 March 1964) is a direct appeal to the courts through the administrative procedure for disputes. The Ministry of Justice and Labour communicated the legal decisions to which the complainants refer in the same way as resolutions against which appeals can be lodged through the administrative procedure for disputes. Furthermore, mention is made in one of these decisions of Resolution No. 1717 which recognises the executive committee elected on 13 October 1984, which means that the complainants had been informed of the existence of this resolution and could have lodged an appeal through the adminstrative procedure for disputes. 53. Finally, the Labour Directorate stressed that it is not certain that Messrs. Ojeda, Zárate, Castillo and other complainants actually work in the building industry. On the other hand, it was clear from the work roster of the Benito Roggio and Sons SA. , construction firm that Mr. Milciades Gimenez Diaz is an employee of this firm. Case No. 1301 54. This complaint is contained in communications from the International Confederation of Free Trade Unions (ICFTU) dated 6 and 25 September 1984. The Government representative of Paraguay to the 71st Session of the International Labour Conference personally delivered certain information concering this complaint. 55. In its communication dated 6 September 1985, the ICFTU alleges that on 18 August 1984, when steps were being taken for the establishment of a trade union, Messrs. Melanio Morel, Gregorio Ojeda, Pedro Zárate, Carlos Castillo and Nicasio Guzmán, leaders of the National Union of Building Workers (SINATRAC) were arrested in the ACEPAR iron and steel works by military officials. In its communication of 25 September 1984, the ICFTU adds that these leaders were released on lO September, but that they have been dismissed on the express instructions of the Ministry of Justice and Labour. 56. The documentation presented by the Government representative of Paraguay to the 71st Session of the International Labour Conference indicates that the persons mentioned by the ICFTU do not appear as members of SINATRAC, nor are they employed in any undertaking. 57. Information on this case was obtained from Messrs. Lino Gómez, Gregorio Ojeda and Melanio Morel, as well as from the competent authorities of the Ministry of Justice and Labour. It should be noted that the events occurred in August 1984, that is, after the executive committee of SINATRAC had split into two factions during the assembly of ll March of that year. 58. According to Messrs. Gómez, Ojeda and Morel, who were members of the executive committee elected at that assembly, as well as Pedro Zárate, their objective was to set up a works committee in the undertaking which was building the ACEPAR plant. A similar committee had previously been set up in the Yaciretá worksite. On 18 August 1984, they convened a assembly of workers in this plant which was to be held at the nearest bus stop to the plant. On that day, as they were preparing for the meeting, they were warned by the police that the meeting should not be held. Shortly afterwards they were arrested by members of the army and remained under arrest until 4 September 1984 when they were released without any proceedings having been brought against them. They were not informed of the reason for their detention but were warned not to proceed further with their activities. 59. According to these interlocutors, they had organised works committees on previous occasions without having requested permission from the authorities. On such occasions the meetings had been held in the premises of the Paraguayan Confederation of Workers, which was impossible on this occasion because of the large number of interested workers (approximately, 2,700). They had believed that the ACEPAR plant, an undertaking which is directed by military staff, was not situated in a military zone and there was no information or notice indicating that it was. Finally, they stated that they were not dismissed as a result of these events because they were not recruited individually under separate contracts, but collectively as a team on the basis of labour-leasing contracts. What is certain that since their arrest they have not been able to obtain contracts with building undertakings as before but only with individual employers. 60. According to the authorities of the Ministry of Justice and Labour, the ACEPAR undertaking is a para-public undertaking, located in a military zone and is directed by military staff. The assembly to which the complaints refer was not authorised and for this reason could not be held. As a result they were arrested by the military forces, without charges being brought against them, and subsequently released. The Ministry never intervened with a view to obtaining their possible dismissal. In point of fact the matter is a problem which should be examined in the context of the rivalry existing between the two trade union factions to which reference has been made, and the action carried out by the complainants was designed to obtain new supporters because of the forthcoming trade union elections. Case No. 1341 61. This complaint is contained in a communication from the ICFTU dated 24 June 1985. The Government had not replied. 62. The ICFTU alleges that Paraguayan citizens who were offered the possibility of returning to their country after a long period of forced exile are being submitted to a strict control by the authorities. The complainant refers in particular to the case of Mr. Ricardo Esperanza Leiva, former trade union leader who returned to the country after many years of exile and who has since been the victim of thorough and constant police supervision in Asunción, including supervision by motorised police whenever he travels to any part of the city. 63. The ICFTU states that this type of government measure severely limits the individual and trade union freedoms of Mr. Esperanza Leiva and even prevents him from seeking work, which is an indispensable condition to be able to live and to remain the the country. 64. Finally, the ICFTU requests that steps be taken with a view to the definitive lifting by the Government of the restrictions affecting exiled citizens who have returned to the country, in particular, Mr. Esperanza Leiva. 65. During the mission we were able to gather the following information on this case. 66. Mr. Ricardo Esperanza Leiva stated that under the pretext of guaranteeing his personal safety he was the victim of constant supervision by the police who followed him on motor cycles whenever he moved from one place to another. We were able to confirm the presence of a police motor cycle opposite the place where we met with Mr. Leiva. According to the latter, the fact that he is followed everywhere by the police, who also request documentation from those persons with whom he has contact, makes it impossible for him to find work, earn his living and therefore makes it difficult for him to remain in the country. Mr. Leiva said that he had been in exile since l959, that he was sentenced to four years of prison in 1961 when he clandestinely entered the country and joined the Epifanismo political movement. He also pointed out that he was a member of the Paraguayan Confederation of Workers in Exile, acting as its Deputy Secretary-General, and that he had been a leader of the Frigorífico Liebig trade union. 67. The authorities of the Ministry stated that the police surveillance of Mr. Leiva was designed to guarantee his safety and protect his life, since he had been a member of the Epifanismo movement, which is a specific, dissident sector of the Colorado Party headed in 1954 by Epifanio Méndez Fleitas, Chief of Police responsible for a number of atrocities. The authorities of the Ministry also pointed out that Mr. Leiva could present his problem to the Ministry of Labour and that other trade unionists in exile had returned to the country and were now working. 68. During the meeting with the Minister of Justice and Labour I expressed the concern felt at the international level and, in particular, within the ILO at the situation of Mr. Leiva and requested that this situation should be made known to the Minister of the Interior. Geraldo von Potobsky. PERSONS INTERVIEWED Ministry of Justice and Labour Mr. Eugenio Jacquet, Minister of Justice and Labour Mr. Carlos Doldán del Puerto, Director of Labour Mr. Luciano Mendoza, Chief of the Department of International Standards Mr. Arsenio Riveros Delgado, Deputy Adviser of the Legal Department of the Labour Directorate Mrs. Ilse de Riveros, Regional Director of the Department of Itapúa, Social Information Branch Paraguayan Confederation of Workers in Exile (CPTE) Mr. Julio Etcheverry Espinola, Secretary-General of the CPTE Mr. Basilio González Hermosilla, Secretary-General of the CPTE Mr. Pablo E. Aquino, Secretary of International Relations, CPTE Mr. Eulogio Alvarenga, Secretary responsible for Peasant Affairs, CPTE Mr. Julián Garay, Secretary responsible for Organisation, CPTE Mr. Carlos L. Garay González, Secretary responsible for Youth Affairs, CPTE Mr. Ricardo Esperanza Leiva, Deputy Secretary-General, CPTE (interviewed in Asunción) Mr. Marcelino Notario Bernal, Secretary responsible for Organisation, CPTE (interviewed in Asunción) Paraguayan Confederation of Workers (CPT) Mr. Sotero Ledesma, Secretary-General of the CPT Mr. Porfirio Giménez, Secretary of Records and Correspondence, CPT Mr. Salvador Vera, Secretary of International Affairs, CPT Mr. Enrique Benítez, Secretary of Culture and Trade Union Education, CPT Various other leaders of the CPT. Federation of Production, Industry and Commerce (FEPRINCO) and the Paraguayan Industrial Union Mr. Alirio W. Ugarte Díaz, Presdent of FEPRINCO and other members of the executive committee Mr. Gustavo Díaz de Vivar, Representative of the Paraguayan Industrial Union National Union of Building Workers (SINATRAC) Mr. Milcíades Giménez Diaz, Secretary-General of SINATRAC (executive committee recognised by the Ministry of Justice and Labour) Mr. Lino Gómez, Secretary-General of SINATRAC Mr. Gregorio Ojeda, Assistant Secretary-General of SINATRAC Mr. Melanio Morel, Financial Secretary of SINATRAC Federation of Bank Employees (FETRABAN) Mr. Víctor Báez Mosquera, Secretary-General of FETRABAN Mr. Humberto Ayala, Secretary of Organisation of FETRABAN Mr. Carlos Veron, Secretary of Relations of FETRABAN Mr. Víctor Manuel Rodríguez, Press Secretary of the Trade Union of the Banco de Brasil and Adviser to the Executive Committee of FETRABAN Inter-Trade Union Movement of Workers (MIT-Paraguay) Mr. José Martínez, Organisation and Action Committee of the Inter-Trade Union Movement of Workers (MIT) Paraguay) Mr. Gustavo Benítez, Legal Adviser of MIT and the National Co-ordinating Committee of Workers Others Mr. Hugo Roberto Cabrera Alemán, Under-Manager of the Banco de Brasil Mr. Panulfo Jara Casco, President of Línea de Autobuses 21 Case No. 1219 COMPLAINT PRESENTED BY THE NATIONAL AGRICULTURE AND ALLIED WORKERS' UNION AGAINST THE GOVERNMENT OF LIBERIA 551. The Committee examined this case in February 1984 and again in May 1984, when it submitted interim reports to the Governing Body [see 233rd Report, paras. 628-658, approved by the Governing Body at its 225th Session (February-March 1984); and 234th Report, paras. 585-611, approved by the Governing Body at its 226th Session (May-June 1984)]. Subsequently, the Government sent further information in a communication dated 15 May 1985. 552. Liberia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 553. When the Committee examined this case at its May 1984 Session, it made the following recommendations: (a) as regards the suspension of the National Agriculture and Allied Workers' Union of Liberia, the Committee recalls the importance it attaches to the principle that workers' organisations must not be subject to suspension by administrative decision. It again urges the Government to lift without delay the suspension order affecting the union since 15 November 1982 and to keep it informed of any decision taken in this respect; (b) as regards the labour dispute with the Firestone Plantations Company, the suspension of the union and the dismissal of 1,200 union members employed by the company, the Committee requests the Government to indicate whether the dispute has been settled and, if so, whether an agreement has been signed between the union and the employer. It also requests the Government to send its observations and detailed information on the alleged dismissal of NAAWUL members employed by the Firestone Plantations Company; (c) as regards the general ban on strikes introduced by Decree No. 12 of 30 June 1980, which abolished the right to strike and stipulated that labour disputes must be arbitrated solely by the Ministry of Labour and Youth and Sports, the Committee urges the Government to lift the ban which has been in effect for nearly four years, and which constitutes in itself a serious violation of trade union rights. It again draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case; (d) finally, as regards the union funds originating from the World Confederation of Labour and, specifically, the charge of embezzlement against the union's General Secretary, the Committee considers that, in order to reach a decision in full possession of the facts, it needs to examine the findings of the audit of the union's accounts and requests the Government to send it a copy of the report. B. The Government's reply 554. In its communication of 15 May 1985, the Government states that the principle that workers' organisations must not be suspended by administrative decision is being observed in law and in practice, and refers the Committee to section 4103 of the Labour Practices Law. It further states that the suspension of NAAWUL was requested by its members who alleged that the union's funds were being embezzled and who wished the union's accounts to be audited; that the suspension was a prerequisite for the audit; and that it was lifted on 3 October 1984 after completion of the audit. 555. With regard to the labour dispute between NAAWUL and the Firestone Plantations Company and the dismissal of 1,200 union members, the Government refers to its awareness of the deadlock in negotiations between the company and NAAWUL which was resolved by the Firestone Employees' Council before concluding a collective agreement now in force and which will expire in November 1985. It denies awareness of any mass dismissal of Firestone employees for being members of NAAWUL, and points out that section 4600(2) of the Labour Practices Law prohibits discrimination against employees because of membership of a labour organisation. 556. On the subject of the general ban on strikes introduced by Decree No. 12 of 30 June 1980, the Government states that the measure was passed to temporarily prevent workers from going on strike following a variety of strikes (involving, inter alia, the destruction of property) which took place in the aftermath of the Popular Revolution of April 1980. It goes on to state that, as emphasised in its previous response, the right to strike is available under section 4503 of the Labour Practices Law, but that the country is currently passing through a transitory period so that the measure is necessary to maintain law and order while workers' education is being introduced by the ILO. The temporary ban on strikes will be lifted as soon as the workers' education being introduced starts to bear fruit. 557. Lastly, the Government denies awareness of any pending case against any member of NAAWUL for the violation of section 4111 of the Labour Practices Law or embezzlement of the union's funds, and states that all efforts will be made to make a copy of the audit available to the Committee in response to its request. C. The conclusions of the Committee 558. The Committee notes with interest the Government's statement that the principle that workers' organisations must not be suspended by administrative decision is being observed in law and in practice, and also that the suspension of NAAWUL was lifted on 3 October 1984. It observes that the suspension of NAAWUL none the less lasted for a period of nearly one year and 11 months, and that the courts do not appear to have been involved in this regard. While the lifting of the suspension leads the Committee to the view that this aspect of the case does not call for further examination, it takes the opportunity to draw attention to the importance it attaches to the principle established in Article 4 of Convention No. 87 that workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority. 559. With regard to the dispute at the Firestone Plantations Company, the Committee regrets that the Government did not supply detailed information relating to the allegation concerning the dismissal of 1,200 union members, but notes the Government's denial of any awareness of a mass dismissal of NAAWUL members as well as the assurance contained in its statement that discrimination against employees because of membership of a labour organisation is prohibited. 560. The Committee also takes note of the Government's indication that the dispute has been resolved as a result of an agreement concluded with the Firestone Company's Employees' Council which is at present in force and which expires in November 1985. In this regard, it notes that there is no reference to the part, if any, played by NAAWUL in any negotiations leading to the agreement, nor is there an indication as to when the agreement was concluded or to the date of its commencement. In the circumstances, the Committee requests the Government to supply it with information on these matters. 561. On the subject of the general ban on strikes introduced by decree in June 1980, the Committee reiterates its view that this in itself constitutes a serious violation of trade union rights, and takes note of the observations made on this subject by the Committee of Experts on the Application of Conventions and Recommendations in 1984 and again in 1985, and of the discussions which took place on this subject in the Committee on the Application of Conventions and Recommendations at the 70th and 71st Sessions of the International Labour Conference. While noting the statement of the Government's representative on the latter occasion that the decree was to be repealed with the introduction of the new Labour Code, the Committee draws attention to the principle that a general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time [204th Report, Case No. 952 (Spain), para. 161, Case No. 976 (Greece), para. 202; 214th Report, Case No. 1021 (Greece), para. 123; 234th Report, Case No. 1201 (Morocco), para. 550]. It shares the hope expressed by the Conference Committee in 1985 that the Government will be led in the near future to adopt the Labour Code and other necessary measures so as to take due account of the divergencies noted by the Committee of Experts between the provision containing the ban on strikes and the Government's obligations in terms of Convention No. 87, especially as regards the rights of trade unions to defend the interests of their members and to organise their activities. 562. The Committee notes the Government's statement that it is unaware of any pending charge against any member of NAAWUL for violation of section 4111 of the Labour Practices Law or embezzlement of union funds. It requests the Government to supply it with all relevant information, including the records of any judicial determinations, relating to the outcome of the proceedings referred to in earlier reports on this case involving a criminal charge of embezzlement which had been brought against the General Secretary of NAAWUL. It regrets that the Government has not so far made a copy of the audit of the union's accounts available, in response to the Committee's request and a reminder sent in July 1985, and in the circumstances renews its request in order that it may reach a decision in full possession of the facts concerning the allegation relating to union funds originating from the World Confederation of Labour. The Committee's recommendations 563. The Committee recommends the Governing Body to approve this interim report and, in particular, the following recommendations: (a) The Committee notes with interest the Government's statement that the principle that workers' organisations must not be suspended by administrative decision is being observed in law and in practice, and that the suspension of NAAWUL was lifted in October 1984. In the circumstances, it considers that this aspect of the case does not call for further examination. (b) The Committee notes, however, that the suspension was in effect for nearly one year and 11 months, and that the courts do not appear to have been involved in this regard; it accordingly draws attention to the importance it attaches to the principle established in Article 4 of Convention No. 87, namely that workers' and employers' organisations shall not be liable to be suspended or dissolved by administrative authority. (c) The Committee regrets that the Government did not supply detailed information regarding the allegation concerning the dismissal of 1,200 union members at the Firestone Plantations Company. (d) The Committee requests the Government to supply it with information concerning the part, if any, played by NAAWUL in the negotiations leading to the conclusion of a collective agreement with the Firestone Company's Employees' Council and as to the dates on which the agreement was concluded and entered into force. (e) With regard to the general ban on strikes introduced by decree in June 1980, the Committee reiterates its view that this constitutes a serious violation of trade union rights, and draws attention to the principle that such a prohibition can only be justified in the event of an acute national emergency and for a limited period of time; it shares the hope of the Conference Committee on the Application of Conventions and Recommendations in 1985 that the Government will in the near future adopt the Labour Code and other necessary measures which will enable due account to be taken of the divergencies between the provision containing the ban on strikes and the Government's obligations in terms of Convention No. 87, especially as regards the rights of trade unions to defend the interests of their members and to organise their activities. (f) The Committee requests the Government to supply it with the audit of the union's accounts and all relevant information (including the record of any judicial determinations) relating to the outcome of proceedings referred to in earlier reports on this case involving a criminal charge of embezzlement which had been brought against the General Secretary of NAAWUL, so that it may reach a decision in full possession of the facts concerning the allegation of misuse of union funds originating from the World Confederation of Labour. Case No. 1250 COMPLAINT PRESENTED BY THE NATIONAL FEDERATION OF INDEPENDENT TRADE UNIONS AGAINST THE GOVERNMENT OF BELGIUM 564. The National Federation of Independent Trade Unions (UNSI) submitted a complaint of infringement of trade union rights in Belgium in a communication dated 18 June 1983. The complainant organisation sent additional information in a communication dated 13 December 1983. In addition, it sent a telegram to the Chairman of the Governing Body of the ILO during the 70th Session of the International Labour Conference on 19 June 1984. Finally, the complainant presented further allegations in a communication dated 8 November 1984. 565. The Government sent very detailed information in letters dated 2 and 11 May 1984. Subsequently, in communications dated October 1984 and April 1985, it requested the Committee to adjourn examination of this case on the grounds that the decisions concerning the renewal of the terms of office of the members of the National Labour Council were due to be taken later. 566. At its November 1984 meeting, the Committee on Freedom of Association decided to adjourn examination of the case, as indicated in paragraph 6 of its 236th Report, approved by the Governing Body at its 228th Session (Geneva, November 1984). Since no reply had been received from the Government, the Committee again adjourned examination of the case in February and in May 1985 [238th Report, paragraph 5 and 239th Report, paragraph 10]. However, given the time which had elapsed since the complaint had been lodged, the Committee pointed out to the Government in May 1985 that it would have to examine the substance of the case at its November 1985 meeting even if no detailed reply had been received from the Government. Since then, the Government sent its observations in a communication dated 24 September 1985. 567. Belgium 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 568. The National Federation of Independent Trade Unions (UNSI), in its letter of 18 June 1983, had alleged that the Government of Belgium granted powers of monopoly to "political" trade unions and was seeking to paralyse the independent union organisations. The latter therefore together had decided to form the National Federation of Independent Trade Unions in October 1982. This Federation grouped the following nine unions: (1) the Cartel of Independent Trade Unions; (2) the United Union of Finance Personnel; (3) the Belgian General Union of Sales Representatives; (4) the General Association of Flemish Trade Unions; (5) the General Federation of Teachers; (6) the National Confederation of Executive Staff (CNC); (7) the Independent General Trade Unions; (8) the National Belgian Police Union; (9) the Independent Union of Railwaymen. 569. The UNSI submitted a complaint of infringement of Conventions Nos. 87 and 98 against the Government of Belgium in respect of both the public and private sectors. 570. With regard to the private sector, the complainant alleged that the Government was refusing to allow its representatives to sit on the National Labour Council, and that the trade union allowances paid in this sector constituted a means of pressurising workers to induce them to join unions close to the Government since, in many cases, the allowances amount to more than half the trade union dues. 571. The complainant organisation had explained that trade union life in the private sector was completely dominated by the National Labour Council since its members obtained the status of most representative organisation. They could then take part in trade union elections and joint consultations with management, pay unemployment allowances, and obtain subsidies and the right to trade union allowances for their affiliated members. Admission to the Council - which is regulated by the Act of 29 May 1952 - was subject only to two criteria: that the organisation be established at the national level and that it be inter-occupational. The complainant organisation believed that it was entitled to admission as it satisfied both requirements. 572. The UNSI had stated that since the Act provided for a maximum of 24 seats on the National Labour Council and only 22 of these seats had been allocated by 25 November 1980 (as could be seen from the Royal Order of 10 November 1980), it had submitted an application to the Minister of Employment and Labour in view of the possibility of the two remaining seats being allocated by Royal Order. This application had been rejected on the grounds that the current members' term of office was due to be renewed in December 1984. 573. Furthermore, according to the UNSI, the Belgian authorities were not complying with the principle established by the Committee on Freedom of Association according to which, by placing one organisation at an advantage or at a disadvantage in relation to the others, a government might either directly or indirectly influence the choice of workers regarding the organisation to which they intended to belong, since they would undeniably be inclined to join the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. The freedom to choose was a right expressly laid down in Convention No. 87. 574. According to the complainant organisation, the system of trade union allowances in the private sector was really a means of pressurising the workers since in many cases these allowances represented more than half the trade union dues. The system was thus, the UNSI maintained, contrary to the Committee's recommendations in Case No. 981, where it had drawn the Government's attention to the importance which it attached to the fact that any advantage granted by law to workers who belonged to a particular trade union must not exceed a symbolic level, so as to ensure that in no case could an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intended to belong. 575. As regards the public sector, the complainant organisation recalled that, in accordance with the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities, this sector was also subject to representation on the National Labour Council. According to the complainant organisation, this Act, which had already been the subject of complaints [Cases Nos. 655 and 981] was still not being applied because of the reluctance of the political trade unions to accept the system of counting. The Cartel of Independent Trade Unions of Belgium had itself, moreover, contested the system of counting. 576. A Bill, No. 371, aimed at amending the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities, had been introduced. It would deprive trade unions which were not members of the National Labour Council of any possibility of belonging to the three general bargaining committees, whereas formerly this exclusion applied only to the highest committee, that is to say the Joint Committee for the Public Services as a whole. 577. The UNSI considered that this Bill thus demonstrated the determination of the Belgian Government to paralyse the functioning of an independent union, contrary to an opinion previously expressed by the Committee on Freedom of Association in Case No. 655 [143rd Report, paragraph 42], in which the Committee considered that a system such as that set up by the Act of 19 December 1974 might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be excluded from the general bargaining committees on the grounds that they were not affiliated to a trade union organisation represented on the National Labour Council, a body which was not, however, competent with respect to the public sector. 578. The complainant organisation had also criticised the fact that, according to official statistics on the trade union allowance in the public sector, the three unions considered to be the most representative in fact represented only about 30 per cent of the staff in this sector. Moreover, it believed that the Act of 19 December 1974 would not be applied, since the three recognised political unions would not agree to their membership being counted. Consequently, the Act of 1 September 1980 in respect of the payment of a trade union allowance by the public services would not be applied either, which meant that the relative payments would still be made in accordance with transitional provisions. 579. Moreover, according to the complainant organisation, Bill No. 371 - even more than the 1974 Act - would deprive organisations which are not members of the National Labour Council of their means of action. These organisations would not have access to any of the bodies in which important decisions are taken. Furthermore, sections 16 and 17 of the Act of 19 December 1974 established a discriminatory system to the detriment of trade unions not affiliated to an organisation represented on the National Labour Council as regards the exercise of the most elementary rights in the field of freedom of association; for example, they could neither hold meetings on departmental premises, collect trade union dues during working hours, nor monitor examinations. 580. In conclusion, the complainant organisation stated that no objective and clearly defined criterion was applied for the recognition of an independent trade union; recognition depended solely on the political good will of the Government - that is to say the Minister of Employment and Labour - and the Belgian Government did not wish to accept organisations that were not politically oriented. The complainant organisation regretted that the uniting of all the independent unions, from both the public and the private sector, in a federation - the UNSI - had not had the desired influence on developments in the trade union situation, although the independent unions had made a point of complying with the wishes of the Government which was willing to negotiate only with unions that are inter-occupational. 581. In a subsequent communication dated 13 December 1983, the complainant organisation added that the Minister of Posts and Telecommunications decided, on 28 October 1983, to deprive the Postal Workers' Federation (POSTBOND), a trade union organisation representing the workers of this sector on the administrative council of the Post Office Social Service, of its right of representation as from 1 January 1984, replacing it by a liberal trade union which was allegedly not representative. 582. Furthermore, in a communication dated 8 November 1984, the UNSI referred to measures to implement the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities which had been adopted in the Royal Order of 28 September 1984 published in the Official Gazette No. 105 (Moniteur Belge) dated 20 October 1984. 583. According to the UNSI, it was clear from this text that: (1) as far as the three higher committees were concerned, only trade unions with at least one seat on the National Labour Council were entitled to participate therein. Other organisations might sit only on the sectoral or special committees, whose importance was extremely limited since major decisions concerning staff were negotiated in the three higher committees; (2) as regards the membership count, it did not appear to be mandatory inasmuch as it had to be requested by the chairman of the committee - generally the Minister. 584. Furthermore, the UNSI had observed that its section representing railwaymen was unable to defend its members effectively since, under the trade union rules of the Belgian National Railway Company, only organisations represented on the National Labour Council were empowered to do so and the Minister of Employment and Labour was not prepared to grant it a seat on the Council. B. The Government's reply 585. In its communication of 2 May 1984, the Government confirmed, in respect of its refusal to allow representatives of the complainant organisation to sit on the National Labour Council, that during the first quarter of 1983, the UNSI had submitted an application to the Minister of Employment and Labour to be represented on the Council. On 5 May 1983, the general administration of the Collective Labour Relations Department of the Ministry of Employment and Labour had informed the General Secretary of the UNSI that its application to be represented on the National Labour Council was premature since the membership of the Council could not be changed before 12 December 1984, when its members' term of office was to be renewed. Moreover, in a letter of 26 September 1983 addressed to the Vice-President of the UNSI, the Minister of Employment and Labour had confirmed that the organisation's application to be represented on the National Labour Council would be considered when the membership of the Council was being renewed, the procedure for which was to begin in June 1984. 586. The Government explained that section 2(2) of the Act of 29 May 1952 to establish a National Labour Council read as follows: The members shall be appointed by the Crown. They shall comprise representatives in equal numbers of the most representative organisations of employers and of the most representative organisations of workers ... The members representing the most representative organisations of workers shall be selected from among candidates nominated on a double list by the inter-occupational organisations federated at the national level. It also pointed out that section 5 of the same Act of 29 May 1952 provided that members of the National Labour Council were appointed for a period of four years and that the present members of the National Labour Council had been appointed by Royal Order of 10 November 1980, effective as from 12 December 1980. The renewal of their term of office was due to take place on 12 December 1984. 587. The Government confirmed that only 22 seats had been allocated out of the 24 provided for in the relevant regulations; however, the two vacant seats could be allocated only in accordance with the principle of parity between delegates of employers' organisations and delegates of workers' organisations, as laid down in section 2(2) of the afore-mentioned Act of 29 May 1952. Thus, according to the Government, before allowing a workers' organisation to be represented on the National Labour Council, it was indispensable not only to investigate the representativity of that organisation but also, in view of the principle of parity on the National Labour Council and of the required balance between representatives of the two sides, to carry out a fresh study of the representativity of all the organisations of employers and the workers. The Minister of Employment and Labour had therefore rightly considered that in view of the scope of this study it should be undertaken as part of the normal procedure for the renewal of the term of office of the members of the Council. He had therefore informed the UNSI of his intention to consider this organisation's application in June 1984. 588. As regards the system of trade union allowances, the Government stated that the principle and conditions underlying the granting of a trade union allowance or any other advantage to unionised workers were matters, in the private sector, for consultation and collective bargaining. There were no laws or regulations establishing principles in this respect. One or more trade union organisations might conclude, with the employers' representatives or with one particular employer, a collective labour agreement containing a clause providing for the grant of a trade union allowance only to workers who were members of the organisations which were parties to the agreement. This clause, which laid down an obligation on the employer, was the counterpart of an obligation for the signatory unions to maintain industrial peace at the level of the sector of activity or of the undertaking. The role of the public authorities in this area was extremely limited, being confined to accepting to register a collective agreement with the Collective Labour Relations Department of the Ministry of Employment and Labour, and accepting to render binding by Royal Order a collective labour agreement reached by a joint body. 589. The Government disputed the argument put forward by the complainant organisation when it referred to recommendations made by the Committee on Freedom of Association in Case No. 981. According to the Government, Belgium law confers no special advantage on the workers of a particular union. The Royal Orders rendering collective labour agreements binding were submitted to the courts for verification of their legal implications and might be quashed by the Council of State. Moreover, collective labour agreements that were not rendered binding might also be challenged in the courts of law. 590. The Government explained that Belgian jurisprudence had on several occasions upheld the legality of the system of advantages reserved for unionised workers or for the members of certain unions and that the judicial and administrative jurisdictions had specified the conditions in which such advantages could be considered legal. These conditions might be summarised as follows: the advantages must be in proportion to the contributions paid by the unionised workers; it was generally considered that the amount of the allowances should in no case exceed that of the contribution paid by the worker as a member of a union (that is to say, the annual dues paid by members to their organisation). The granting of advantages only to unionised workers could not undermine the rights acquired by the workers as a whole. An employer could not reserve solely for unionised workers what previously belonged to the workers as a whole. Lastly, the advantages must be the counterpart of the participation by workers belonging to the organisations which had signed the agreement, in the development of the socio-economic life of the undertaking or of the sector, and were generally granted in exchange for the expressed or tacit undertaking by the union to commit itself for a specific period to a policy of higher productivity or a policy of industrial peace. 591. The Government therefore considered that the system of trade union allowances granted in compliance with conditions laid down by jurisprudence was not contrary to article 20 of the Belgian Constitution which established freedom of association, nor to the provisions of the Act of 24 May 1921 which guaranteed this freedom of association since it protected the right of the individual to join or not to join a particular association. 592. The Government had recalled that the Committee on Freedom of Association had always recognised that the principle of freedom of choice did not prevent making a distinction between the most representative trade union and other trade unions or according special rights to the majority trade union, provided the distinction was made on the basis of objective criteria. According to the Government, the trade union organisations sitting on joint committees were workers' organisations which, on the basis of objective criteria laid down by Belgian law, had been recognised as the most representative in the sector concerned. It therefore followed that the criterion of representativity enabled the system of trade union allowances to satisfy one of the conditions on which Belgian jurisprudence had made the legality of this system depend, namely that the trade union allowance was a counterpart to the obligation to ensure growth of productivity or maintenance of industrial peace, since only organisations that were representative of the workers could achieve the objectives of productivity and industrial peace in any particular sector. 593. In the case of the public sector, the Government, in reply to the allegation that Bill No. 371 was of such a nature as to deprive trade union organisations which were not members of the National Labour Council of any possibility of participating in the three general bargaining committees, whereas those organisations had previously been excluded only from the highest committee, i.e. the Committee for the Public Services as a whole, pointed out that Bill No. 371 had become law on 19 July 1983. It explained that the purpose of that legislation was to adopt the Act of 19 December 1974 to the new system of organisation of the State resulting from the 1980 constitutional reform and to amend provisions in respect of which certain difficulties in their implementation had become apparent. 594. Consequently, section 7 of the Act of 19 December 1974 laying down the criteria for representativity of trade union organisations sitting on the general bargaining committees had been modified. The former section 7 read as follows: Section 7 Paragraph 1. Any trade union organisation which: (1) operates at the national level; (2) defends the interest of all categories of public sector staff; (3) is affiliated to a trade union organisation represented on the National Labour Council shall be deemed representative and hence entitled to sit on the Joint Committee for the Public Services as a whole referred to in section 3, paragraph 1, subparagraph (3). Paragraph 2. Any trade union organisation which: (1) satisfies the requirements of paragraph 1; (2) has a paid-up membership representing at least 10 per cent of the total staff employed in the public services referred to in section 1, paragraph 1, subparagraphs (1) and (2), to the members of whose staff the present Act has been made applicable shall be deemed representative and hence entitled to sit on the national public services committee referred to in section 3, paragraph 1, subparagraph (1). Paragraph 3. Any trade union which: (1) satisfies the requirements of paragraph 1; and (2) has a paid-up membership representing at least 10 per cent of the total staff employed in the public services referred to section 1, paragraph 1, subparagraphs (3), (4) and (5), to the members of whose staff the present Act has been made applicable shall be deemed representative and hence entitled to sit on the provincial and local public services committee referred to in section 3, paragraph 1, subparagraph (2). The new section 7 reads as follows: Section 7 Any trade union organisation which: (1) operates at the national level; (2) defends the interests of all categories of public service staff; (3) is affiliated to a trade union organisation represented on the National Labour Council shall be deemed representative and hence entitled to sit on the Joint Committee for the Public Services as a whole, on the national community and regional public services committees and on the provincial and local public services committees. The Government explained that the representativity requirements had therefore been standardised, since a minimum number of paid-up members was no longer required for an organisation to be deemed representative and thus entitled to sit on the national, community and regional public services committees (formerly the "national public service committees"), and on the provincial and local public services committees. As a result, the conditions for access to these committees were now more easily met. 595. The Government considered that there was no basis for the complainant's statement that organisations which did not belong to the National Labour Council were no longer able to sit on the three general bargaining committees, whereas previously this applied only to the Joint Committee for the Public Services as a whole, because the standardisation of the requirements had made access to the other two committees easier and because these requirements (operation at the national level, defence of the interest of all categories of public service staff, affiliation to a trade union organisation represented on the National Labour Council) had already existed in the original text of the Act of 19 December 1974 for access to the Joint Committee for the Public Services as a whole (former section 7, paragraph 1), the national public services committee (former section 7, paragraph 2, subparagraph 1) and the provincial and local public service committees (former section 7, paragraph 3, subparagraph 3). 596. The Government pointed out that, since no conditions for access to the general committees had been added by the new Act, the complainant's grievance must be interpreted as referring to the three above-mentioned requirements (which existed before the entry into force of the Act of 19 July 1983 and which had been maintained in force by that Act), in particular the requirement of affiliation to a trade union organisation represented on the National Labour Council. The Government indicated that this requirement had been previously submitted to the Committee on Freedom of Association for consideration in Case No. 655 and that the Committee then noted that the Government had pointed out "that the requirement that the union must be affiliated to a trade union organisation represented on the National Labour Council to be entitled to sit on the general bargaining committees is intended to prevent precedence being given to organisations of public service employees which might tend to concern themselves purely with the interests of their own members, without taking into account those of employees as a whole, and the solidarity to be shown towards the latter" and "that in view of the multiplicity of unions in the Belgian public sector it was necessary for a selection to be made for the purposes of bargaining and consultation". According to the Government, the Committee had recommended that this selection should continue to be based on an evaluation of representativity, determined objectively, which, it stated, continued to be the practice. It refuted the allegation that the legislation criticised by the complainant showed a determination on the part of the Government to paralyse the functioning of an independent trade union, thus ignoring an earlier opinion expressed by the ILO. 597. On this point, the Government considered it had been established that the new Act was primarily of a technical nature and that the amendment of section 7 of the Act of 19 December 1974 (concerning the representativity required for entitlement to sit on the general bargaining committees) had had the effect of reducing the Act's requirements by standardising them. The Government considered that there were no grounds for the allegation: (1) first, because the independent trade unions were offered the possibility of sitting on the various bargaining and consultation committees referred to in sections 3, 4 and 10 of the Act of 19 December 1974 if they met the representativity requirements set out in sections 7 and 8 of the Act. While it was true that the complainant organisation was not currently affiliated to a trade union organisation represented on the National Labour Council and therefore could not be deemed representative and hence entitled to sit on the general bargaining committees (section 7 of the Act of 19 December 1974), it was nevertheless possible for it, upon the forthcoming entry into force of the said Act, to establish that it had the largest paid-up membership of any of the trade union organisations not affiliated to a trade union organisation represented on the National Labour Council. This membership, which amounted to at least 10 per cent of the staff of the services coming under a sectoral committee or a special committee referred to in section 4 of the Act, would thus allow it to sit on these committees (section 8 of the Act); (2) second, because the Committee on Freedom of Association recognised in Case No. 655 (158th Report, paragraph 57) that "the fact that the trade union organisation was debarred from membership of joint committees did not necessarily imply infringement of the trade union rights of that organisation; but for there to be no infringement two conditions must be met". The first condition was that the question whether or not a union was sufficiently representative to sit on such bodies must be determined by objective criteria. This aspect had already been submitted for consideration to the Committee on Freedom of Association. The Government had pointed out at the time, as regards Case No. 655 (158th Report, paragraph 66) that objective and pre-determined criteria were applicable to trade unions by virtue of sections 7 and 8 of the Act. The second condition was the guarantee granted to trade union organisations deemed non-representative enabling them to further and defend the interests of their members, within the meaning of Article 10 of Convention No. 87, through the activities which they could undertake in other fields and the other rights which they enjoyed. This guarantee, which was independent of any condition of representativity, was provided by the approval arrangements set out in section 15 of the Act of 19 December 1974. An organisation obtained such approval by sending a copy of its rules and a list of its officers to the authority which, in this respect, was the body with competence in such matters. Approval conferred on the organisation concerned the prerogatives referred to in section 16 of the Act of 19 December 1974 (right to intervene with the authorities on behalf of employees, to assist an employee who has been required to justify his actions, to post notices on the premises of the department concerned and to receive documentation concerning staff administration). 598. The Government also refuted the allegation that sections 16 and 17 of the Act of 19 December 1974 established a system which discriminated against trade union organisations which were not represented on the National Labour Council with respect to the exercise of the most elementary rights in the field of freedom of assocation, namely that it was impossible for the complainant to hold meetings and to collect union dues on departmental premises and to monitor examinations. 599. The Government indicated that sections 16 and 17 read as follows: Section 16 Approved trade union organisations may, under conditions laid down by the Crown: (1) intercede with the authorities on behalf of all the staff whom they represent or on behalf of any individual employee; (2) at his request, assist an employee summoned to justify his actions before the administrative authority; (3) post notices on the premises of the department concerned; (4) receive general documentation concerning the administration of the staff whom they represet. Section 17 Under conditions laid down by the Crown and without prejudice to the other prerogatives conferred upon them by the present Act, representative trade union organisations may: (1) exercise the prerogatives of approved trade union organisations; (2) collect trade union dues on departmental premises during working hours; (3) attend the competitive examinations and tests organised for employees, without prejudice to the prerogatives of the examiners; (4) hold meetings on departmental premises. 600. The Government explained that sections 16 and 17 of the Act reserved for trade union organisations prerogatives which varied according to whether the organisation concerned was approved or was deemed representative. However, this was not considered by the Government to constitute discrimination against the former type of organisation, since the Committee on Freedom of Association had recognised (158th Report, Case No. 655, para. 57) that certain advantages, especially with regard to representation, might, in certain circumstances, be accorded to trade unions by reason of the extent of their representativity. The Government contended that the withholding of certain prerogatives from trade union organisations which were not deemed representative within the meaning of the Act of 19 December 1974 must be regarded as justified. 601. The Government disputed the allegation that, according to official statistics of trade union allowances paid in the public sector, the three trade unions considered the most representative represented only about 30 per cent of staff in the sector. It had pointed out that the Prime Minister himself had stated that 620,391 allowances had been paid during the reference years 1977 and 1978. It had been established that the total number of staff members to whom the Act respecting the trade union allowance was applicable was equal, for the reference years 1977 and 1978 combined, to 1,336,610 units. According to the Government, the number of staff to whom a trade union allowance had been paid represented 46. 42 per cent of the total. However, this percentage (which did not correspond to that indicated by the complainant organisation), must not be regarded as representing the level of membership of the three trade union organisations deemed to be the most representative. In the first place, figures for later reference periods were not yet available and might reveal a percentage exceeding that mentioned above, owing to an amendment of the regulations concerning the trade union allowance which had had the effect of increasing the number of beneficiaries (section 4(3) of the Royal Order of 30 September 1980, introduced by Royal Order of 18 April 1982); in the second place, many employees who satisfied the legal and regulatory requirements for entitlement to this allowance had chosen not to claim it by refraining from completing the application form which had to be addressed to the payment bodies set up by the trade union organisations concerned. According to the Government, the percentage which the complainant organisation had given as corresponding to the trade union allowance was incorrect as it did not correspond to the figure communicated by the Prime Minister. 602. Regarding the allegation that the three recognised political unions refused a membership count, the Government pointed out that a Royal Order to implement the Act of 19 December 1974 that would shortly come into force would have the effect of removing the transitional arrangements and instituting a comprehensive union allowance scheme. 603. In a subsequent communication dated 11 May 1984, the Government stated in connection with that part of the complaint concerning the representation of the Postal Workers' Federation on the administration council of the Post Office Social Service that three appeals lodged by the Federation were before the Council of State of Belgium: a request for the repeal of section 13 of Royal Order No. 182 of 30 December 1982 respecting the restructuring of the Post Office, which provided for the creation of a supervisory body; a request for the repeal of the Ministerial Order of 30 September 1983, which provided for the establishment of a contact committee at the headquarters of each postal region and at the general and central administration of the postal service; and a request for the repeal of the Ministerial Order of 28 October 1983 approving the association referred to in the National Federation of Independent Trade Union's complaint, which was an association engaged in social assistance activities for post office staff. The Government considered that it had to await the outcome of these internal appeals before taking a stand on an international appeal. 604. In its communication of 12 October 1984, the Government had requested that examination of the case be adjourned on the grounds that the decisions concerning the renewal of the terms of office of the members of the National Labour Council were due to be taken at the end of the year. It renewed its request for adjournment on several occasions, the last being in May 1985. 605. Since then, the Goverment sent a reply dated 24 September 1985. It points out that the renewal of the terms of office of the members of the National Labour Council had been due in December 1984 but that some difficulties had arisen concerning distribution in the employers' group and that it was only in the month of August 1985 that the latter had been able to adopt a final stand. Under the provisions of the Royal Decree of 18 July 1985, it increased the number of members of the National Labour Council from 22 to 24, as permitted by the Act of 19 May 1952, and, by Royal Decree of 26 July 1985, it appointed eight representatives of the Federation of Belgian Enterprises, three representatives of the Higher Council of Employers in small enterprises and self-employed persons and one representative of a farmers' occupational organisation, as delegates of employers' associations, as well as six representatives of the Belgian General Federation of Labour, five representatives of the Confederation of Christian Trade Unions and one representative of the Federation of Liberal Trade Unions of Belgium as delegates of workers' associations. 606. The Government states that no seat has been attributed to the National Federation of Independent Trade Unions (UNSI) because, in its view, this organisation cannot at the present time be considered as one of the most representative workers' organisations since, after examination of the documents presented by the complainant organisation, the associations which comprise it have a total of less than 100,000 members, a very large proportion of whom is in the public sector. Furthermore, it has not been shown that the number of members belonging to the private sector justifies recognition of the UNSI as a workers' organisation amongst the most representative of the private sector: some of the details concerning the number of affiliates show only 28,430 members in the private sector and UNSI does not give any information on the 23,485 members which it assigns to one of its component organisations, the Cartel of Independent Unions of Belgium. The request for further details in this respect has remained unanswered. 607. The Government recalls that the 1952 legislation deliberately excluded numerical criteria concerning the representativity of workers' organisations so as not to limit the discretionary power of the Crown, as head of the executive. It therefore believes that there are no grounds for reference to section 3 of the Act of 15 December 1968 concerning collective bargaining and the committees which requires, in particular, that workers' organisations comprise approximately 50,000 members. This criterion, according to the Government, is only an absolute minimum since the sphere of action of the National Labour Council is necessarily much greater than that of a single branch of activity. It recalls that the number of affiliates is not the only criterion which should guide the choice of the Government and that according to the parliamentary proceedings of 1952, the legislation requires that an organisation be stable for it to be recognised as representative, so that it is in a position to ensure the respect of the agreements which it signs. According to the Government, since the National Union of Independent Trade Unions was established only on 9 November 1982, it has not yet been able to give proof of such stability. 608. As regards the consequences of non-participation in the National Labour Council, the Government explains that in accordance with the provisions of the Act of 5 December 1968, the signing of a collective labour agreement is reserved to the representative organisations. These agreements have a binding and direct effect on third parties. This in no way means that the other organisations may not conclude collective agreements but that their effect will remain limited to only the contracting parties, in accordance with the provisions of common law. 609. In the same way, the Government adds, the advantages which are accorded under collective agreements to only unionised workers may not be considered as contrary to freedom of association since they are much less than the cost of union dues given the jurisprudential rules established, in particular, by the Council of State. 610. The Government furthermore constantly ensures that the advantages are related to the degree of representativity, as can be seen by the reform which the Act of 22 January 1985 introduced as regards organisations which can present candidates to the Electoral College of executive staff of the works council. Provision was made in this Act that in addition to the occupational organisations of executive staff represented in the National Labour Council, the specific organisations of executive staff with at least 10,000 members and the individual lists of executive staff supported by 10 per cent of the electors will be allowed to present candidates. This decision shows the concern of the Government to base the criteria of representativity on real situations, excluding any type of discrimination. 611. As regards labour relations in the public sector, the Government states that the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities was recently implemented by Royal Order dated 28 September 1984 in pursuance of which certain changes were made to the labour relations system in the public sector. 612. The Government admits that the UNSI is not at the present time affiliated to a trade union organisation represented on the National Labour Council and therefore cannot, for the time being, be considered as representative to sit on the general bargaining committees (section 7 of the Act of 19 December 1974). It adds that the UNSI may, however, under the provisions of section 8, paragraph 1(2), and paragraph 2(2) of the 1974 Act and sections 53-65 of the Royal Decree of 28 September 1984 implementing this Act, be considered as representative to sit on the sectoral committees and specific committees. 613. The Government points out that the UNSI has, to this end, and in pursuance of section 53 of the Royal Decree of 28 September 1984, presented its candidacy in letters dated 26 and 27 December 1984 to the competent authorities, and that the latter immediately proceeded to verify whether this organisation satisfied the conditions established by the law. This examination, carried out along with that requested by other organisations seeking admission, is currently under way. 614. As regards the approval arrangements contained in sections 15 and 16 of the Act of 19 December 1974 implemented by Royal Decree of 28 September 1984, the complainant organisation, like the other trade union organisations, as early as 1 December 1984, requested and obtained its approval. It exercises the prerogatives conferred upon it by section 16 of the 1974 Act and letters of official recognition have been delivered to the trade union leaders of UNSI. 615. As regards the trade union allowance, the Government explains that, since the Act of 19 December 1974 was recently implemented by the Royal Decree of 28 September 1984, the non-implementation of the Act of 19 December 1974 to which UNSI referred will no longer constitute an obstacle to the comprehensive application of the Act on the trade union allowance. Such a comprehensive union allowance scheme presupposes, however, that the trade union organisations considered as representative to sit on the sectoral committees and the specific committees for which provision is made in this Act should be determined beforehand by a membership count. The results of this count will be available only during the course of 1985. It is for this reason that the Act of 22 January 1985 extended the transitory application of the Act respecting the trade union allowance for the reference years 1983, 1984 and 1985; this extension does not compromise the rights of the UNSI. If its representativity is established in 1985, it will be able to benefit from the system of the trade union allowance from 1986. 616. As regards the representativity of the UNSI - in the public sector, in the bargaining committees established by or under the Act of 19 December 1974 - an examination of this representativity is under way: it was decided on 13 May 1985, as regards the general bargaining committees (section 7 of the 1974 Act) that, since the complainant organisation is not affiliated to a trade union organisation represented on the National Labour Council, it is not considered as representative to sit on the general bargaining committees and, as regards the sectoral committees (section 8 of the 1974 Act), that UNSI satisfies the requirements of representativity to present its candidacy. 617. An examination of the criteria of representativity is thus now being carried out by an independent commission enjoying autonomous decision-making powers and composed of three judicial magistrates. The purpose of this examination is to verify whether the UNSI has a sufficient number of paid-up members to be considered as representative to sit on the different sectoral committees to which the complainant organisation has requested admission. The results are expected before the end of 1985; the work involves the examination and comparison of staff lists and paid-up membership lists of the trade union organisations. 618. In conclusion, the Belgian Government believes that it has satisfied the request of the UNSI as regards the examination the conditions of representativity and has done everything possible to ensure that this examination is carried out in conditions which respect freedom of association, by entrusting the examination to an autonomous commission composed of independent magistrates and ensuring that the criteria established do not infringe the rights of trade union organisations. C. The Committee's conclusions 619. This complaint, presented by a trade union federation organised at the inter-occupational and national level and which claims to be representative, concerns the difficulties it is encountering in its efforts to gain a seat on the National Labour Council. It also deals with the obstacles to its normal functioning and the discriminatory treatment that results from its inability to take part in the work of the Council. 620. At the Government's request, the Committee adjourned examination of this case in November 1984 and in February and May 1985. 621. Before giving any opinion on the issues involved in this case, certain aspects of which have already been raised in connection with a number of similar cases brought before the Committee on Freedom of Association [69th and 93rd Reports, Case No. 281 (Belgium); 92nd Report, Case No. 376 (Belgium); 130th, 143rd and 158th Reports, Case No. 655 (Belgium); 197th Report, Case No. 918 (Belgium); 208th Report, Case No. 981 (Belgium)], the Committee believes that they should be looked at in the framework of its past observations on the question of trade union representativity. 622. In general terms, the Committee has recognised that certain advantages might be accorded to trade unions by reason of the extent of their representativity, but has taken the view that the intervention of the public authorities with regard to advantages should not be of such a nature as to influence unduly the choice of the workers in respect of the organisation to which they wish to belong. The Committee has also taken the view that the fact that a trade union organisation is debarred from membership of joint committees does not necessarily imply an infringement of the trade union rights of that organisation, provided two conditions are met: first, the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively "to further and defend the interests" of its members within the meaning of Article 10 of the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87) [see 143rd Report, Case No. 655 (Belgium), para. 40.] 623. Regarding the system resulting from the legislation in force in Belgium, the Committee of Experts on the Application of Conventions and Recommendations has for a number of years made comments on the provisions which require occupational organisations to be represented on the National Labour Council (on which only inter-occcupational organisations that are federated at the national level may sit (Act of 29 May 1952)), in order to be considered as representative, both in the private sector (Act of 5 December 1968) and in the public sector (Act of 19 December 1974), so as to be able to sit on joint committees in the private sector or take part in the work of the general bargaining committees in the public sector. 624. Both the Committee of Experts and the Committee on Freedom of Association [see 143rd Report, Case No. 655, para. 42] have considered that such legislation might mean that even the most representative trade union in a particular branch might be excluded from taking part in collective bargaining for its sector. Both have requested the Government to re-examine the above-mentioned provisions of the Acts of 1968 and 1974 and to provide information on developments in the matter. 625. In the present case, the complainant challenges the Government's refusal to grant it access to the National Labour Council, which results in it being unable to take part in trade union elections and in joint consultations in the private sector, to pay employment allowances and to receive subsidies. The organisation also complains of discriminatory treatment, which derives from the fact that workers in the private sector are paid trade union allowances which the complainant claims are too high and act as a real means of inducing the workers to join unions that are close to the Government. The complainant also refers to the impossibility of taking part in the work of the general bargaining committees in the public sector, following an amendment to the Act of 19 December 1974 introduced by an Act of 19 July 1983, whereas previously, according to the complainant, union organisations not represented on the National Labour Council were debarred only from the highest committee. The complainant criticises the discriminatory treatment that results from the non-participation of the public sector union organisations in the National Labour Council by virtue of sections 16 and 17 of the Act of 19 December 1974 (concerning the holding of meetings, the collection of union dues on departmental premises and the monitoring of examinations), the alleged refusal of the three trade unions deemed by the public authorities to be the most representative to accept a membership count whereas they allegedly represent only 30 per cent of the staff in the public sector, and the unilateral decision of the Minister of Posts and Telecommunications which allegedly has led to the replacement of the representative Postal Workers' Federation by a liberal union which is not representative. 626. Regarding the Government's alleged refusal to grant the complainant organisation access to the National Labour Council when two seats on the Council have been vacant since November 1980, the Committee notes the Government's statement that the organisation's request was examined when the term of office of the members of the Council was renewed in August 1985. The Committee regrets this delay since, as the Government admits, the complainant organisation submitted its request during the first quarter of 1983. 627. As regards the representativity criteria laid down in Belgian legislation, the Committee observes that according to section 2(2) of the Act of 29 May 1952, the Crown is empowered to appoint the members of the National Labour Council selected from among the most representative inter-occupational organisations federated at the national level. The Committee also notes that, in connection with Case No. 918, the Belgian Government cited among the criteria of representativity other than those contained in the 1952 Act, section 3 of the Act of 5 December 1968, which reads as follows: ... The following shall be deemed to be representative workers' organisations and representative employers' organisations: (1) Inter-occupational organisations of workers and employers established at the national level and represented on the Central Economic Council and the National Labour Council; the workers' organisations shall furthermore have at least 50,000 members ... [197th Report, para. 147.] 628. In the said case, the Committee considered that the minimum 50,000 members as a qualification for entitlement to sit on the National Labour Council was not excessive, in so far as trade union organisations covered all categories of workers and not a single category. [197th Report, Case No. 918, para. 162.] 629. The Committee observes that the quantitative criterion of 50,000 members was not applied in the present case. If this minimum had been applied, the Committee would have considered that it was not excessive. 630. In the present case the Committee notes that the Government merely points out that no seat was attributed to the UNSI because its member organisations taken together have a total of less than 100,000 members, a large number of whom belong to the public sector and it adds that the legislation stipulates that an organisation, in order to be a member of the National Labour Council, must be in a position to ensure the observance of the agreements which it signs, and that in the view of the Government this is not the case as regards the UNSI which was created only on 9 November 1982 and which has not yet given proof of its stability. 631. The Committee also observes that six seats were allocated to the Belgian General Federation of Labour, five to the Confederation of Christian Trade Unions and one to the Federation of Liberal Trade Unions of Belgium. 632. Since the refusal to grant a seat to the UNSI on the National Labour Council makes it impossible for that union to sit on the general negotiating committees for the public service, the Committee requests the Government to indicate the objective elements which formed the basis for its refusal to allocate a seat to the UNSI in order to enable the Committee to reach a decision based on a full knowledge of the facts. 633. With regard to the obstacles to the normal functioning of the complainant organisation as a result of its non-participation in the National Labour Council, which it claims makes it impossible for it to take part in trade union elections and joint consultation machinery, to pay unemployment allowances and obtain subsidies, the Committee notes that in its reply of 24 September 1985, the Government states that whilst the collective labour agreement under the Act of 5 December 1968 is reserved to representative organisations, that is those represented on the National Labour Council, and has a binding and direct effect with regard to third parties, this does not prevent the other organisations from concluding collective agreements though these will remain limited in effect to only their signatories. The Government does not provide any comments concerning trade union elections, the payment of unemployment allowances and the obtaining of subsidies. 634. On this point, the Committee recalls that although it has recognised that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativity, the reason for which a union is deprived of such advantages must lie in its non-representative character. 635. As regards the alleged discrimination deriving from the fact that workers in the private sector are paid union allowances which the complainant organisation considers too high and claims are a real means of inducing workers to join certain trade unions, since in many cases the allowance is more than 50 per cent of union dues, the Committee observes that the Government maintains that the principle and conditions underlying the granting of the allowance in the private sector are matters for consultation and negotiation between the parties and therefore are considered as trade union security clauses. The Government recognises that the public authorities are involved but states that their role is confined to agreeing to register a collective agreement and to render binding by Royal Order a collective agreement reached by a joint body. 636. The Committee also notes the Government's explanations that the Royal Orders making collective agreements binding and thereby securing advantages for the members of certain trade unions are examined as to their legality by the courts and that the said advantages must be proportional to the contributions paid by the unionised workers - that is to say that they may not exceed the annual dues paid by members of their organisations. The Committee also notes that in its reply of 24 September 1985, the Government states that the advantages provided by collective agreements to only the unionised workers are considerably below the cost of trade union membership given the jurisprudential rules established by the Council of State. The Committee observes, however, that the effect of the system of extension of the trade union security clauses contained in collective agreements is to render them applicable to persons who have not participated or who have not been represented in the process of negotiation. The securing of advantages thus takes on a different aspect in as much as it is no longer applicable solely to the parties to a collective agreement. 637. Consequently, the Committee cannot but reiterate its earlier conclusions and draw the Government's attention to the importance which it attaches to the fact that any advantage granted by the law to workers who belong to a particular trade union must not exceed a genuinely symbolic level, so as to ensure that in no case can an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intend to belong. [See 92nd Report, Case No. 376 (Belgium), para. 39, and 208th Report, Case No. 981 (Belgium), para. 117.] 638. The complainant claims that, in the public sector, the effect of the Act of 19 July 1983 amending the Act of 19 December 1974 concerning relations between the public authorities and trade unions of personnel employed by these authorities is to deprive trade union organisations with no seat on the National Labour Council of any possibility of participating in the three general bargaining committees whereas, previously, they were debarred only from the highest committee. According to the complainant, this Act ignores an opinion expressed in the past by the Committee of Freedom of Association in connection with Case No. 655 in which the Committee had criticised the Belgian system on the grounds that it might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be excluded from the general bargaining committees on the grounds that they were not affiliated to a trade union organisation represented on the National Labour Council, a body which would not, however, be competent with respect to the public sector. 639. The Committee notes the Government's explanation that the new Act does not modify the situation obtaining under the 1974 Act since it is intended solely to facilitate access to the general committees by removing the requirement of a minimum number of members (10 per cent) for entitlement to participate in them. The Committee observes, nevertheless, that the new Act maintains the requirement for an organisation to be affiliated to an inter-occupational organisation represented on the National Labour Council in order to be able to sit on both the Joint Committee for the Public Services as a whole and on the national, provincial and local public services committees (section 7, paragraph 3 of the 1974 Act, as amended on 19 July 1983). Furthermore, the Government in its reply of 24 September 1985, points out that the UNSI may not sit on the general bargaining committees and that it may sit only on the sectoral and specific committees. 640. The Committee therefore considers that, even though in putting forward its case the complainant may have been mistaken in indicating that, in future, organisations not represented on the National Labour Council would be debarred from the three general bargaining committees whereas in the past they were debarred only from the highest committee, the fact remains that the provisions of the Act of 19 December 1974, as amended by the Act of 19 July 1983, and which came into force by virtue of the Royal Order of 28 September 1984, do not meet all the criteria suggested by the Committee with regard to trade union representativity. The legislation still requires an organisation to be affiliated to an inter-occupational organisation represented on the National Labour Council in order to have a seat on the Joint Committee for the Public Services as a whole and on the national, provincial and local public services committees (section 7, paragraph 3, of the 1974 Act as amended by the 1983 Act) and in order to be involved in the collective bargaining procedure (section 6 of the 1974 Act). The amendment introduced by the Act of 19 July 1983 which removes the requirement of the minimum number of 10 per cent does not alter the situation on which the Committee of Experts on the Application of Conventions and Recommendations has been making observations for several years. 641. The Committee, accordingly, invites the Government to amend its legislation since it could result in public sector organisations - which do not sit on the National Labour Council if they are not inter-occuptional or are not affiliated to an inter-occupational organisation established at the national level - being deprived of the right to bargain collectively in defence of the occupational interests of their members in the general bargaining committees, not only at the national but also provincial or local levels, even though they might be sufficiently representative. The new Act of 19 July 1983, as the Government itself recognises, actually grants organisations not represented on the National Labour Council no new right. It merely confirms the right to which the organisations are entitled, namely, the right to sit on specific or sectoral committees whose terms of reference are restricted to issues affecting the staff of the services for which they have been created, to the exclusion of issues that are the subject of negotiations in one of the general national, provincial or local public services committees or in the Joint Committee for the Public Services as a whole (section 4(3) and section 8 of the 1974 Act). 642. Furthermore, the Committee notes with interest that the UNSI obtained its approval by a decision of 1 December 1984 and that it has been authorised to request a seat on the specific or sectoral bargaining committees by a decision of 13 May 1985. As regards this last point, the Committee also notes with interest that the examination of the representativity of trade union organisations which seek to sit on the specific or sectoral bargaining committees has been entrusted to an independent commission composed of three judicial magistrates. The Committee believes that this development is positive. It requests the Government to state whether in fact the UNSI has been admitted to sit on the specific or sectoral committees and, if this is the case, on which committees. It would also like to know the scope and compass of collective bargaining in the specific and sectoral committees. 643. Regarding the alleged discrimination resulting from the non-participation of the public sector trade union organisations in the National Labour Council by virtue of sections 16 and 17 of the Act of 19 December 1974 (concerning the holding of meetings, the collection of union dues on departmental premises and monitoring of examinations), the Committee notes the Government's explanations with respect to the prerogatives that are reserved for union organisations deemed to be representative. 644. On this point, the Committee considers, however, that it can only reiterate the conclusions it reached in its examination of the previous allegation since the system established by the 1974 Act, as amended in July 1983, might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be denied the right to hold meetings and to collect union dues on departmental premises not because they are unrepresentative but because they are not representative within the meaning of the Act of 19 December 1974 as amended - in other words, that they are not represented on the National Labour Council. 645. Concerning the complainant organisation's challenge to the degree of representativity of the three trade unions considered by the public authorities as being the most representative and the alleged refusal of these unions to agree to a membership count, the Committee notes the comments of the Government on these various points. In particular, it notes that the Government challenges the figures given for the percentage paid in the form of a trade union allowance, that it points out that the complainant does not hold it responsible for the non-observance of the 1974 Act and that it accuses the trade unions concerned of refusing a membership count. 646. The Committee considers that it is the responsibility of the Government to conduct an objective verification of the representativity of occupational organisations when this is challenged. It recalls that occupational organisations must be able to assert their right by means of a majority vote of the workers or any other system of counting their members accepted by them and must be able to demand a new election or recount of their membership after a given period of time should they fail to demonstrate their representative character. It would appear from the Royal Order of 28 September 1984 to implement the 1974 Act that provision does exist for a membership count, but that the verification of representativity takes place at the initiative of the chairmen of the bargaining committees (sections 53 to 56). The supervision of the criteria of representativity, on the other hand, lies with a commission composed of judges (sections 58 to 70). 647. As to the representation of the post and telecommunications staff, the Committee notes that appeals have been brought before the courts. The Committee trusts that the principles concerning the verification of the representativity of occupational organisations will be respected and requests the Government to inform it of the outcome of the appeals lodged by the parties concerned. The Committee's recommendations 648. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) Regarding the Government's alleged refusal to allow the complainant organisation to sit on the National Labour Council, the Committee regrets the Government's delay in taking up the matter. (b) The Committee observes that the refusal to grant a seat to the UNSI on the National Labour Council makes it impossible for that union to sit on the general negotiating committees for the public service; the Committee requests the Government to indicate the objective factors which form the basis for the refusal to grant a seat to the UNSI on the National Labour Council so that it can reach a decision on this aspect of the case in full knowledge of the facts. (c) Regarding the alleged discrimination resulting from the payment to workers in the private sector of trade union allowances that are said to be a real means of inducing workers to become members of certain trade unions and which are allegedly to be extended by a Royal Order, the Committee reminds the Government of the importance that it attaches to the fact that any advantage granted by the law to workers who belong to a particular trade union must not exceed a genuinely symbolic level, so as to ensure that in no case can an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intend to belong. (d) Concerning the alleged discrimination resulting both in the public and private sectors from the non-participation of union organisations in the National Labour Council (impossibility of participating in union elections and in joint consultations in the private sector and impossibility of taking part in general bargaining committees and of holding meetings and collecting union dues on departmental premises in the public sector), the Committee, as has already the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to amend its legislation. This in effect provides that organisations that are not inter-occupational in nature or which are not affiliated to an inter-occupational organisation established at the national level do not sit on the National Labour Council. As a result they are denied a considerable number of trade union rights, including in part the right to bargain collectively in the economic sectors in which they exercise their activities and in this particular instance in general negotiating committees in the public sector. (e) Concerning the complainant organisation's challenge to the degree of representativity of the three trade unions deemed by the public authorities to be the most representative and the problem that has arisen in connection with the representativity of the occupational organisations of post and telecommunications staff, the Committee recalls that it is the responsibility of the Government to conduct an objective verification of the occupational organisations concerned and that the complainant occupational organisations must be able to assert their right by means of a majority vote of the workers or of any other system of counting their members accepted by them. In the present case, given that appeals have been brought before the courts, the Committee requests the Government to inform it of the outcome of the appeals lodged by the parties concerned. (f) The Committee notes with interest that the UNSI obtained its approval by a decision of 1 December 1984 and that its request for authorisation to sit on the specific or sectoral bargaining committees of the public sector is currently being examined by an independent commission composed of three judicial magistrates. (g) The Committee requests the Government to indicate whether in fact the UNSI has been permitted to sit on some of these committees and, if this is the case, on which committees and also to indicate the scope and compass of collective bargaining in the specific and sectoral committees in question. Case No. 1266 COMPLAINT PRESENTED BY THE NATIONAL UNION OF AFRICAN TEACHERS OF UPPER VOLTA AND THE WORLD CONFEDERATION OF ORGANISATIONS OF THE TEACHING PROFESSION AGAINST THE GOVERNMENT OF BURKINA FASO 649. The Committee examined this case at its November 1984 meeting, at which it submitted to the Governing Body an interim report contained in paragraphs 553 to 578 of its 236th Report, which the Governing Body approved at its 228th (November 1984) Session. Since then, the World Confederation of Organisations of the Teaching Profession (WCOTP) supplied additional information on this case on 28 March 1985, and the Government sent two replies in letters dated 29 and 31 May 1985. The WCOTP supplied certain information in a communication dated 18 July 1985. 650. Burkina Faso has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 651. This case refers to the arrest and detention in the internment camp of Koudougou or in the gendarmerie of Ouagadougou of trade union leaders Jean Pagnimda Bila, general secretary of the National Union of African Teachers of Upper Volta (SNEAHV), Bahiéba Joachim Sib, secretary for external relations, and Ismael Ousmane Kindo, deputy secretary of the union since March 1984. The case also involves the dismissal of a very large number of teachers (2,600 according to the complainants) in March 1984, following a 48-hour protest strike held by teachers on 20 and 21 March to obtain the release of their imprisoned trade union leaders. Lastly, it involves the illegality, according to the complainants, of an extraordinary congress of the SNEAHV held from 28 to 30 August 1984, during which an unlawful trade union leadership was allegedly elected without the participation of the striking teachers, but with that of two leaders of the national executive of the said union who disassociated themselves from the protest movement of 20 and 21 March 1984. 652. The Government had countered in its communications of March and June 1984 that the arrests of the union leaders had been motivated by political rather than trade union activities. As proof, it had sent a copy of the motion of the SNEAHV of 7 August 1983 in which the union harshly criticised the action of the Government which had itself, by proclamation of 4 August 1983, suspended political parties and prohibited political activities. The Government accused the leadership of this union of being colonialist and reactionary. The Government had not replied to the allegation concerning the extraordinary congress of the SNEAHV held in August 1984 during which, alleged the complainants, an unlawful trade union leadership had been elected. 653. In these circumstances, at its Session of November 1984, the Governing Body had approved the following conclusions of the Committee: "(a) With regard to the case as a whole, the Committee notes with grave concern that four trade union leaders have been interned by the administrative authorities for several months and that mass dismissals are said to have involved some 2,600 teachers for having taken part in a two-day strike. (b) The Committee urges the Government to release the trade union leaders who have been interned by the administrative authorities without having been judged or to ensure that they are brought rapidly before an independent and impartial court and, in the latter case, to communicate the text of the relevant judgements together with the reasons adduced therefor. (c) The Committee requests the Government to keep it informed of the situation of these trade union leaders. (d) The Committee urges the Government to reinstate the teachers who were dismissed only for having participated in a strike. (e) The Committee requests the Government to keep it informed of any measure taken to this effect. (f) The Committee requests the Government to send its observations on the allegation to which it has not yet replied, and which dates from 1 October 1984, according to which, at an extraordinary congress of the SNEAHV in August 1984, an illegal trade union executive was elected." B. Further allegations 654. According to the WCOTP, in its communication of 28 March 1985, the SNEAHV trade union leaders Bila, Kindo and Sib, were still being detained without having been tried. 655. The archives of the SNEAHV had been seized. 656. The Government had only reintegrated 100 teachers following the strike of March 1984, out of approximately 2,600 persons who had been dismissed. According to the WCOTP, the Government itself had permitted the dismissal of 1,466 teachers. 657. The teachers had been made to undergo a political examination as a condition of their reinstatement, as was shown by a photocopy of the application form for readmittance in the public service of Burkina Faso, attached to the documentation, which read in part as follows: "I. To be filled in by the dismissed teacher I, the undersigned, Name , Given name , Grade , Last post before dismissal , Department , Province , appeal to the mercy of the people of Burkina Faso for the revolutionary penalty which I fully deserve for having participated in the pro-imperialist and putschist strike organised by elements manipulated by the stateless, reactionary and counter-revolutionary former executive of the SNEAHV. Henceforth, I undertake to be guided by the political orientation speech of 2 October and to be a devoted servant of the people of Burkina Faso for the success of the great struggle which it has taken up since 4 August 1983 for freedom, dignity and social progress." A second section, to be filled in by the Revolutionary Defence Committee (CDR), indicated that the CDR, having noted that the person concerned participated in the socio-economic activities, night meetings, individual debates and general meetings of the Revolutionary Defence Committee, gave its consent for the person concerned to join the revolutionary family of Burkina Faso. 658. The WCOTP also enclosed with its documentation a photocopy of a letter, bearing the letterhead of the Minister of the Interior and Security, addressed to dismissed teachers who were former members of the executive of the SNEAHV (reference No. 3831/IS/CAB of 28 August 1984), in which the Director of the Minister's Office pointed out to the persons concerned that, in accordance with the statutory provisions, no person could carry on trade union activities if he was not an active member of a duly recognised trade union. The letter added: "Since your dismissal for holding a wildcat strike, you have lost the status of teacher and therefore that of member of the teachers' trade union. I therefore draw your attention to everything which could happen as a result of the illegal activities which you are currently carrying on, contrary to your obligations and your new status." 659. The WCOTP also enclosed with its complaint a photocopy of a letter addressed to the President of Burkina Faso by a group of teachers dismissed on 23 January 1985, in which the persons concerned gave the assurance that the two-day strike of 20 and 21 March 1984, of which the only purpose was to request the release of trade union leaders, was not putschist in nature, and requested the release of the union leaders detained in Koudougou and in Ouagadougou and the reinstatement of primary school teachers and those employed in training services for young agricultural workers who have been dismissed for holding a strike. The letter stated in particular that, in view of the gravity of the situation, only the President could prevent teachers from emigrating, restore the confidence of the dismissed teachers (the letter mentioned that there had been several cases of suicide) and revive the school system in Burkina Faso. It was signed by the group's appointed reporter, Daniel Ouedraogo. 660. Lastly, the documentation contained a photocopy of another letter bearing the letterhead of a working group of dismissed teachers, dated 22 February 1985, also signed by the same Daniel Ouedraogo. This group appealed to the ILO to obtain the reinstatement of the dismissed teachers. It pointed out that on 13 February 1985 only 100 teachers had been reinstated, although the group had addressed the letter to the Chief of State to remind him of the measure of clemency which he had decided to adopt in favour of the dismissed teachers on the anniversary of his take-over on 4 August 1984. The said measure of clemency, continued the letter, had not been implemented although the dismissed teachers had been required to fill in forms for this purpose. The letter concluded that the teachers were destitute, that it was prohibited for private establishments to engage them, that the distribution of grain to the needy did not apply to them and that the educational system in Burkina Faso was slowly dying. 661. The WCOTP concluded by requesting that an ILO mission visit Burkina Faso. C. The Government's reply 662. In his communication of 29 May 1985, the Minister of Labour, Social Security and the Public Service, in reply to the complainant's allegations, pointed out that the case involved political demonstrations, concrete political acts committed by politicians who had conducted political campaigns in order to accede to political posts and the state apparatus. These men used trade unionism and the recruitment of public servants or employees in a discriminatory way in order to betray the people. They also resorted to political agitation to stir up discontent and to incite a coup by their elements in the army, continued the Minister. 663. The revolution of 4 August 1983 gave power to the people. Its adversaries, friends of the people in word only, had attempted to oppose the August revolution, to spread crude lies, to denigrate it and to foment counter-revolutionary conflicts and intrigues against the interest of the masses. The August revolution had dissolved the old reactionary political parties which had divided the masses among themselves on a reactionary and regionalist political basis. The August revolution struggled against imperialism, neo-colonialism, reactionary social forces, and reactionary classes and social groups which were partisans of imperialist oppression and exploitation. The revolution, which was the work of the masses, had been made in spite of the handful of reactionaries who had seized political power or dreamed of seizing it, the Minister further pointed out. 664. He added: The former dignitaries of past regimes have been summoned by the President of the National Council, who warned them against any manoeuvres to oppose the status quo and sent them back to their village. These former leaders, who nurtured dreams of returning to the old order, wanted to conspire with certain countries which were worried by the revolution of Burkina Faso. They were all gathered up and interned in several locations in the country. Some of them then called on their political friends in freedom to continue the activities of sabotage, denigration and lies. They were the ones who thought they could cloak themselves in trade unionism and brandish ILO Convention No. 87 to cover up their activities. 665. The Minister stated further: The Government, which respects workers and their organisations, cannot tolerate that, in their name, certain individuals attempted to use trade unionism against the National Council of the Revolution. Caught in the act of spreading poison and lies, these elements have been captured and interned with the old leaders. These measures were taken against persons who lied deliberately in the hope of mobilising the people in their struggle. Anyone who still thinks that he can mobilise elements of the people on the basis of lies, denigration and defamatory statements, will meet the same fate, affirmed the Minister who requested the ILO and the Committee on Freedom of Association to visit Burkina Faso to make an investigation. 666. The Minister added: It will be seen that the people, organised in its democratic institutions, had to denounce the sordid manoeuvres of the reactionary politicians in the SNEAHV leadership. 667. The Minister pointed out, however, that measures of release had been taken with respect to certain political prisoners. He gave an assurance that the persons involved in this case could also be released with a warning against failure to observe the existing provisions of legislation and regulations. He affirmed that it was futile to infringe the law under the pretext of holding trade union office and that the measure affecting the persons involved was based on this argument. 668. The Minister further specified that the Government had received more than 500 militant self-criticisms from teachers who condemned the political and subversive machinations of the leaders of the SNEAHV. He added that in June 1984 he had thought that the ILO and the Committee on Freedom of Association had been in possession of these self-criticisms, in which teachers admitted that they have been manipulated by a leadership which had involved them without their knowledge or by pressurising them in a political struggle against the democratic popular revolution. 669. Lastly, the Minister observed that the SNEAHV no longer existed, not that the Government had dissolved it administratively and contrary to the provisions of Convention No. 87, but because this trade union organisation had changed its name and leadership during its congress of August 1984. At the end of this congress, it had been accepted that this trade union would henceforth be called the National Trade Union of Teachers of Burkina Faso (SNEB) and a new executive had been elected for this trade union. 670. Still according to the Minister, the SNEB and its members condemned the acts committed by the former executive of the SNEAHV which, for political reasons, had created a link between the teachers and the trade union and certain politicians belonging to the reactionary parties. Rank-and-file members of the former SNEAHV had denounced the elements that had seized leadership of their organisation and had changed the name of their organisation. According to the Minister, the ILO should not accept the complaints by administrators of trade union organisations which practice trade union anarchy, denigration and defamation, hiding behind the shield of the ILO, once the masses and their democratic defence organisations had risen up to fight them. 671. In a further communication, dated 31 May 1985, the Minister of Labour expressed surprise that complaints from a so-called working group, which was in fact composed of counter-revolutionary individuals motivated by putschist intentions, should be taken into consideration at the level of an international body such as the ILO. He affirmed that the allegations of these individuals, who were overtly hostile to the democratic popular revolution of 4 August 1983, only aimed to politically harm the National Council of the Revolution and the prestige of the State, and he gave his assurance that it had never been the intention of the National Council of the Revolution to deliberately infringe trade union rights, as Burkina Faso had ratified Conventions Nos. 87 and 98 in 1960 and 1962, respectively. D. Further developments 672. In a communication dated 18 July 1985, the WCOTP states that it has been informed that two of the arrested trade unionists, Ismael Ousmane Kindo and Bahiéba Joachim Sib, were released without being tried on 17 June 1985 after 16 months of detention. The other trade unionists were thought to be still administratively interned. 673. The ILO sent a telegram to the Government of Burkina Faso on 12 August 1985 requesting it to confirm the release on 17 June 1985 of the two trade unionists referred to by name and to indicate whether other measures of clemency had been adopted in favour of the two other trade union leaders who were still detained and the numerous teachers dismissed following the two-day strike of 20 and 21 March 1984. E. The Committee's conclusions 674. The allegations presented by the complainants in this case arise out of the measures taken by the authorities against the National Union of African Teachers of Upper Volta, following the accession to power of the new Government of Burkina Faso on 4 August 1983. 675. According to the allegations, four trade union leaders had been arrested in March 1984 without any charge being brought against them. According to the Government, on the other hand, the persons concerned were guilty of pro-imperialist and putschist political manoeuvres and had used trade unionism to cover up their activities of sabotage through denigration and lies, in particular in their trade union motion of 7 August 1983. 676. Again according to the allegations, the national teachers' union had held a 48-hour protest strike on 20 and 21 March 1984 in order to obtain the release of its trade union leaders, which had led to the dismissal of 2,600 teachers who had taken part in the strike and the subsequent reinstatement of only 100 teachers who had been forced to undergo an examination of their political views as a prerequisite for their reinstatement. According to the Government, on the other hand, 500 teachers have admitted in self-criticisms addressed to the Government to having been manipulated by a trade union executive which had involved them without their knowledge or by pressurising them in a political struggle against the democratic popular revolution. 677. Lastly, according to the allegations, an unlawful trade union executive had been elected in August 1984 without the participation of the striking teachers but with that of two trade union leaders who had belonged to the national executive of the said trade union and who had disassociated themselves from the protest movement. According to the Government, on the other hand, the national teachers' union, at a congress held in August 1984, had changed its name and leadership and its members had condemned the acts committed by the former leadership who, for political reasons, had created a link between themselves and their trade union and certain reactionary politicians and parties. 678. As regards the internment of trade union leaders without any charge having been brought against them, the Committee notes that the four trade union leaders involved were arrested in March 1984 and that, according to the complainants, two of them were released in June 1985 without having been tried, after 16 months' detention, and the other two interned trade union leaders are still in prison. 679. In this respect, the Committee, while noting that two interned trade union leaders have been released, feels bound to express disapproval as regards the imprisonment of these two leaders detained in an administrative internment camp for 16 months, in violation of the fundamental right of trade unionists, as well as other persons, not to be arrested arbitrarily and not to be kept in detention without having been found guilty by an independent and impartial court. 680. The Committee observes with regret that the two other trade union leaders, Jean Bila and Batiémoko Kome, are still being detained. It urges the Government, in view of the assurance provided in its reply as regards the measures for the release of the persons involved in this case, to release the persons concerned in the very near future. 681. As regards the measures of anti-trade union discrimination taken against the striking teachers, consisting in dismissal and in the obligation to sign declarations of loyalty in order to be reinstated, the Committee reminds the Government that by ratifying Convention No. 98, Article 1 in particular, it had undertaken to ensure that workers enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Likewise, by ratifying Convention No. 87, Articles 3 and 10 in particular, it had undertaken to allow workers' organisations having the purpose of promoting and defending the interests of their members the right to formulate their programmes of action and to refrain from any intervention likely to restrict this right or to impede the lawful exercise thereof. 682. In this case, not only has the Government dismissed a considerable number of trade unionists in the teaching profession for having participated in a peaceful two-day protest strike, but it has also compelled the strikers to disassociate from their trade union leaders and to sign declarations of loyalty to the Revolutionary Defence Committees. 683. The Committee recalls the importance it attaches to the right to strike as a means to promote and defend workers' interests, and it again urges the Government to reinstate all the teachers dismissed solely for having participated in a peaceful strike and asks it to keep it informed of any measure taken in this regard. 684. As regards the change of name and executive of the complainant national trade union in this case, the Committee observes that the congress of teachers of August 1984 undertook these changes without the participation of the dismissed striking teachers. It observes in addition that the Government has prohibited striking teachers dismissed at the same time from carrying on any trade union activity (see letter of the Director of the Office of the Minister of the Interior of 28 August 1984). 685. In these circumstances, the Committee considers that the Government has intervened in the internal affairs of this trade union, contrary to the obligations arising out of Article 3, paragraph 2, of Convention No. 87. It insists that the Government restore and guarantee both to the teachers who took part in the strike who have not been reinstated and to those who were forced to sign declarations of loyalty the right to participate fully in trade union activities for the defence of their economic and social interests. 686. The Committee requests the Government to supply it with the record of the extraordinary congress of the SNEAHV held in August 1984. The Committee's recommendations 687. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) The Committee notes that two interned trade union leaders have been released. It feels bound, however, to express disapproval as regards the imprisonment of these two trade union leaders who were detained for 16 months in an administrative internment camp in violation of the fundamental right not to be arrested arbitrarily and not to be held in detention without having been found guilty by an independent and impartial court. (b) The Committee again urges the Government to release the two other trade union leaders who are still administratively interned without having been tried, and asks it to communicate information on any measure taken in this respect. (c) The Committee notes that 100 dismissed teachers out of over 2,600, according to the complainants, have been reinstated after having been forced to sign declarations of loyalty. The Committee reminds the Government that it is under an obligation to provide workers with adequate protection against acts of anti-union discrimination and that it must abstain from any interference in trade union affairs. (d) The Committee therefore again urges the Government to ensure that all of the teachers dismissed solely for having participated in a peaceful 48-hour protest strike in March 1984 are reinstated, and asks it to keep it informed of any measure taken in this respect. (e) The Committee urges the Government to restore and guarantee both to the teachers who took part in the strike who have not been reinstated and to those who were forced to sign declarations of loyalty the right to participate fully in trade union activities for the defence of their economic and social interests. (f) The Committee requests the Government to supply it with the record of the extraordinary congress of the SNEAHV held in August 1984. (g) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the failure to give practical effect to Conventions Nos. 87 and 98 by Burkina Faso. Case No. 1270 COMPLAINT PRESENTED BY THE JAOA MONLEVADE METALWORKERS' UNION, THE UNITARIAN WORKERS' FEDERATION AND THE WORLD CONFEDERATION OF LABOUR AGAINST THE GOVERNMENT OF BRAZIL 688. The Committee examined this case at its November 1984 meeting, when it submitted an interim report which was approved by the Governing Body (236th Report, paras. 603 to 622). The Government sent certain partial information on this case on 21 December 1984, and the complainants conveyed additional information in communications of 6 December 1984 (JAOA Monlevade Union) and 8 January 1985 (World Confederation of Labour). The Committee noted these developments in its 238th Report, paragraph 17, approved by the Governing Body in February 1985. Since then the Office has sent the Government of Brazil two cables dated 25 April and 26 August 1985 requesting it to reply to the allegations still pending. 689. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 690. The complaint originated in a labour dispute and strikes which developed in 1983-84 in Belgo Mineira, an iron and steel undertaking in the State of Minas Gerais, which led to dismissals of workers and trade union leaders, requisitioning of strikers and the recruitment of workers from outside the undertaking who were underpaid and forbidden to organise. The complaint referred in particular to the refusal of the management to renew the collective agreement and to an attempt by the management to negotiate with unorganised workers. 691. The Government sent certain information from which it transpired that the regional labour delegation of the State of Minas Gerais and the Secretary for Labour Relations had acted as mediators in the dispute. The Government also stated, in general terms, that the right to organise is guaranteed by Brazilian law. On the other points mentioned above, however, the Government did not communicate concrete items of information in reply to the allegations of the complainants. 692. At its November 1984 session the Governing Body therefore approved the following recommendations of the Committee: (a) With respect to the allegations concerning the dismissal of workers and trade union officials having taken part in a strike, the requisitioning of strikers, the threats of dismissal against strike pickets and the recruitment of workers at a lower wage accompanied by a ban to join a trade union in order to break a strike, the Committee drew the Government's attention to the dangers inherent in these alleged acts for freedom of association. The Committee also considered that these acts restricted the legitimate exercise of the right to strike. It requested the Government to inform it of measures taken or envisaged towards the reinstatement of the trade unionists who had allegedly been unjustly dismissed and to ensure that Brazilian legislation guaranteeing workers the basic right to join a trade union should be respected. (b) Concerning the alleged refusal of the management to renew the collective agreement which had expired in October 1983 and its attempts to negotiate with workers not belonging to a trade union, the Committee recalled the importance it attached to the promotion of collective bargaining with workers' representatives and requested the Government to inform it of the reasons for the employer's refusal to negotiate and also on the developments in this labour dispute. B. The Government's reply 693. In its communication of 21 December 1984 the Government stated that Brazilian law obliges the employer to negotiate with the appropriate trade union (section 616 of the Consolidation of Labour Laws) and that, despite seven meetings for conciliation purposes at the regional labour delegation of the State of Minas Gerais, no solution had been found enabling the parties to negotiate a new collective agreement; this resulted in the institution of legal proceedings in application of the labour legislation. The Government added that the proceedings were in progress before the labour court. As regards the allegations of dismissal of trade union officials, the Government stated that Brazilian law protects such officials against acts of anti-union discrimination and that, if individual complaints were made and it were shown that trade union officials had been dismissed without committing serious misdemeanours, the courts would order their reinstatement. The Government accordingly requested the Committee on Freedom of Association to declare the case closed. C. Further developments 694. In their communications of 6 December 1984 and 8 January 1985 the complainants claimed that the Government had remained passive in the face of the violations of freedom of association suffered by the workers of JAOA Monlevade since, when the union asked the Ministry of Labour for the inspection reports on the undertaking in July 1984, the Minister had allegedly replied that he did not intend to take any measures against Belgo Mineira and that, if the union wished to obtain copies of the inspection reports, it would have to take legal action. The complainants also took exception to the fact that the Minister had allegedly not imposed any penalty on the undertaking for persistent delays in the payment of wages, although appeals had been lodged in this connection and Brazilian law empowered him to penalise undertakings in such cases. 695. The complainants also repeated their statement to the effect that even though, according to the Government, Brazilian law guarantees the right to organise in the powerful multinational undertaking Belgo Mineira, the management summons the workers individually to force them to sign a letter prepared in advance in which they undertake not to join any trade union on pain of dismissal. 696. The complainants also indicated that, although the undertaking is under the obligation to check off trade union contributions from pay slips, it refuses to do so. 697. The complainants also affirmed that a superintendent of the federal police of the State of Minas Gerais was dismissed from office by the Minister of Justice for having dared to impose sanctions on undertakings. 698. Finally, the complainants claimed that black lists containing the names of workers who had stood up for their rights and had been dismissed were being circulated among employers. In particular, these lists bore the names of about 100 wage earners who had refused to yield to pressure by Belgo Mineira, had been dismissed and had been victimised when looking for new jobs. 699. The complainants attached to their complaint a number of documents in support of their allegations, including a letter of complaint addressed to the regional labour delegate for Minas Gerais on 10 February 1984, in which the complainant union explained that the Belgo Mineira undertaking abolished the night shift unilaterally and without any consultation with the union, obliging workers to work two shifts and not three and so depriving them of the additional pay for night work which they had been receiving for years and which they regarded as an integral part of their wages. 700. The documentation also contains two letters addressed to the Minister of Labour by the complainant union, the first on 11 January 1984 requesting copies of the labour inspection reports in the undertaking concerned, the second on 1 October 1984 reminding the Minister that, despite the interview he had granted the union on 11 July 1984, no measure had yet been taken to remedy the irregularities committed by the undertaking, in particular the pressure exerted on workers to induce them to leave the union and renounce the shift work supplement, which according to the union was a right acquired many years ago, and to force them to refrain from involving the union in the defence of their rights over the abolishment of their night work supplement and the consequent reduction in their paid leave and supplementary social benefits. The letter also mentioned the refusal by the employer, in violation of section 616 of the Consolidation of Labour Laws, to negotiate with the union the renewal of the collective agreement which was to enter into force on 1 October 1984. The letter explained that the undertaking delegated its bargaining powers to the employers' associations in the iron and steel industry for the negotiation in its name of an agreement for this branch of activity within a global bargaining framework including even small undertakings employing three workers, whereas, according to the complainant union, the undertaking had been negotiating directly with it for over 30 years. Still according to the trade union, the employer wished to provoke a conflict between the workers of small undertakings who were negotiating advantages for the first time and those of Belgo Mineira, who already enjoyed acquired rights and genuine advantages. It also wished to destroy the image of the trade union in the eyes of its members and to provoke clashes between workers. The letter ended by stating that, since the Minister of Labour was aware of the unlawful acts of the undertaking, the union hoped that he would take concrete steps to remedy the irregularities and again requested the Minister to supply copies of the inspection reports. 701. The same complaints were transmitted by the complainant union to the President of the Republic in a letter dated 11 October 1984, copy of which was sent to the ILO by the World Confederation of Labour. D. The Committee's conclusions 702. In the present state of affairs the Committee deeply regrets that, despite the time which has elapsed since the latest allegations were presented by the complainants in December 1984 and the many requests for a reply to the allegations addressed to it by the ILO, no written information has been received from the Government respecting this labour dispute since December 1984. 703. The Committee observes, however, that, according to the same written reply furnished by the Government in December 1984, no solution was found with a view to the renewal of the collective agreement in the Belgo Mineira undertaking and that judicial proceedings had been instituted before the labour courts in application of section 616 of the Consolidation of Labour Laws. 704. The Committee notes that section 616, as amended by Act No. 4923 of 1965 and Legislative Decree No. 424 of 1969, provides that no industrial association representing economic or occupational categories and no undertaking, even if it is not represented by an industrial association, may refuse to engage in collective bargaining, that in the event of a refusal to negotiate the industrial associations and undertakings concerned must inform the regional office of the Ministry of Labour so that a summons may be served on the industrial association or undertaking refusing to bargain, and that, in the event of persistent refusal to negotiate by ignoring the summons served by the regional office of the Ministry of Labour or where the negotiations fail, the industrial association or undertaking concerned may commence a collective dispute. Finally, where a collective agreement, collective contract or binding award is in force, it is not permissible to commence a collective dispute more than 70 days before its expiry and any new text is to take effect from the date of such expiry. 705. In the present case the Committee has been informed neither by the Government nor by the complainants of any settlement that may have been reached in this dispute since December 1984, despite the many conciliation meetings held at the regional labour delegation. Nevertheless, the Committee observes that Brazilian law imposes a time limit for the adoption of a decision to commence a collective dispute in the event of refusal by an employer to bargain. In the present case, according to the Government's own statements, judicial proceedings were instituted before December 1984 before the labour courts. The Committee trusts that this labour dispute has since been settled. 706. The Committee therefore requests the Government to communicate any judicial decision handed down in respect of this labour dispute, and to supply detailed information on the manner in which it has developed. The Committee's recommendations 707. In these circumstances the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions: (a) The Committee deeply regrets that, despite the time which has elapsed since the complainants' latest allegations in December 1984 and the many requests for a reply addressed to it by the ILO, no written information has been received from the Government since December 1984. (b) The Committee requests the Government to communicate the text of any judicial decision handed down in respect of the labour dispute between the JAOA Monlevade Metalworkers' Union and the iron and steel undertaking Belgo Mineira, and to supply detailed information on the way in which this dispute has developed. Case No. 1294 COMPLAINT PRESENTED BY THE NATIONAL CONFEDERATION OF AGRICULTURAL WORKERS AGAINST THE GOVERNMENT OF BRAZIL 708. The complaint of the National Confederation of Agricultural Workers (CONTAG) is contained in a communication dated 13 July 1984. 709. In the absence of observations from the Government the Committee was obliged to adjourn examination of this case on three occasions, for the last time at its May 1985 meeting, when it observed with regret that, in spite of the time which had elapsed since the complaint was presented, the information and observations awaited from the Government had not been received. The Committee therefore appealed to the Government to transmit its observations as a matter of urgency, drawing its attention to the fact that, in conformity with the procedural rules set out in paragraph 17 of the Committee's 127th Report, approved by the Governing Body, it might present a report at its next meeting on the substance of this case even if the Government's observations had not been received by that date. [See 239th Report, para. 15, approved by the Governing Body at its 230th Session (May-June 1985).] The Office has since sent the Government of Brazil a cable, dated 27 August 1985, to remind it of this urgent appeal. 710. Since it has still not received the Government's information and observations on this case, the Committee regrets that the Government has not yet sent them, and in view of the time which has elapsed since the complaint was presented, it feels obliged to examine the case without taking these observations into account. 711. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainant's allegations 712. The National Confederation of Agricultural Workers (CONTAG) has submitted a complaint of violation of freedom of association in Brazil on behalf of the Federation of Agricultural Workers of the State of Pernambuco (FETAPE), an organisation which is affiliated with it. The complainants allege that the employers resorted to violence against militant workers in the sugar-cane plantation area of the State of Pernambuco and that the government authorities were ineffective in putting an end to it. 713. The complainants explain that in 1979, following a general strike, the 240,000 rural workers of the above-mentioned sugar-cane cultivation area had secured a collective agreement on wages and labour standards and a guarantee that land would be made available to them for food crops. From 1979 to 1983 other collective agreements were signed under the aegis of the Regional Labour Court, and the workers became aware that they could resort to the labour courts to secure observance of these agreements. Parallel with these developments, the regional labour delegation was at the same time maintaining systematic supervision of the region, in particular keeping checks on clandestine labour and ensuring respect for the rights of the workers enshrined in the law and collective labour agreements. 714. In the middle of 1982, however, the employers began to sabotage these agreements by recruiting unemployed labour in the regions affected by the drought which, at the time of the complaint, had been affecting the Sertao and Agreste for five years. They got rid of the regular workers, replacing them by large numbers of underpaid, non-unionised clandestine workers from these regions. This involved no great risk to the employers, explain the complainants, since the workers concerned returned to their administrative districts after the harvest and had no means of upholding their rights before a labour court. The employers also hired temporary workers residing in the administrative districts of the sugar-cane area, but they contrived to employ them in districts far from their homes, so that the union in their workplace was not that of which they were members and could therefore not demand the application of collective agreements before the courts. 715. According to the complainants, these illegal manoeuvres by the employers were facilitated by the inertia of the regional labour delegation, which relaxed its supervision after the elections towards the end of 1982. 716. The complainants explain that, when the various press media gave wide publicity to the campaign launched by the employers to recruit 55,000 workers from the semi-arid region for the 1983-84 harvest, the Rural Workers' Union drew the attention of the Government of the State of Pernambuco to the irresponsibility of the project from the social point of view and to the benefits that it concealed for the employers, since it was obvious that if workers were recruited from the semi-arid zone, this would be to the detriment of the manpower traditionally available on the spot. Its sole aim was to exploit the agricultural workers of the Sertao and Agreste to the maximum, and the union reminded the State Government of its duty to find viable solutions to the problems of these workers in their home areas. 717. Although the Secretary of State for Social Welfare of the Government of the State of Pernambuco agreed, and stated his opposition to the employers' project, saying that he would authorise it only if they were first able to guarantee the full employment of the workers of the Meta area, no concrete measures were taken to prevent the manoeuvres of the planters and refinery owners. On the contrary, administrative supervision was relaxed. 718. In order to evade responsibility for unjustified dismissals, the employers then resorted to illegal or even brutal manoeuvres. Not content with reducing thousands of organised workers to unemployment, the employers went to the lengths of denying them the payment of the indemnities to which they were entitled by accusing them of leaving their employment or threatening them with physical violence when they wanted to approach the labour courts or their union. 719. The complainants also explain that, in order to secure the departure en masse of the regular workers of the Meta zone, the employers suddenly imposed a substantial increase in the workload, doubling or trebling the volume of the daily tasks provided for in the collective agreements. Parallel with this, they brought private armies on to the sugar-cane plantations, composed of hired ruffians armed with revolvers and rifles, whose job it was to "visit" the inhabitants and "supervise" payment of the workers. At the same time, the workers who had been granted land for their own use were no longer allowed to grow food crops on it; their lands were laid waste and transformed into cane-brakes. 720. At the same time the employers forbade the workers to mention the trade union and the standards for the tasks stipulated in the collective agreements and ceased deducting from the workers' wages the trade union contributions the latter had authorised. The private militia denied trade union officials access to the plantations, and workers who attempted to complain to the labour courts or who, like the union delegates, remained in contact with their unions, were subjected to exemplary punishment by the militia: they were beaten up or shot in the middle of the night, and threats and even murders were common. 721. This was the climate of intimidation and terror that developed in a number of plantations, in particular at Caraúbas, in the Paudalho administrative district, for which Geraldo Guerra had held the concession since 1983. In this connection, the complainants mention the inspection report of the regional labour delegation for this plantation, dated 7 November 1983. 722. According to this report, out of a payroll of 140 workers, 40 were clandestine workers receiving a wage lower than that stipulated in the collective agreement. The report noted that the workload for sugar-cane strippers had doubled (from 80 to 144 bundles), that only 20 of the 100 regular workers were receiving six days' wages and remuneration for the weekly rest day, whereas the remaining 80 were receiving less than six days' wages and no remuneration for the weekly rest as a result of the doubling of the workload. Finally, the employer, his steward and the four men accompanying them were armed with rifles and revolvers, according to the inspection report. 723. In addition, say the complainants, a 72-year-old agricultural worker on the same plantation, António Rodriguez dos Santos, who had been living on the estate for over 40 years and had refused to leave his home and his plot of land, was shot dead by a plantation supervisor on 10 January 1984. The first official version of the affair spoke of a crime of passion, a later version of an accident with a firearm. As it happened, the victim was related to the President of the Union of Rural Workers of Sao Lourenço da Mata and of the President of the Union of Rural Workers of Paudalho. 724. On this plantation, according to the complainants, the employer no longer deducts the workers' trade union contributions, giving as a pretext the need for "free and spontaneous communication". Some workers complained to the Limoeira Court and 18 of them told the court that they had signed their request for cancellation of the check-off under pressure. Following the murder of Rodriguez dos Santos, about 40 workers appeared before the same court, accompanied by the employer, Geraldo Guerra, and confirmed that they had signed the request for cancellation on their own initiative, after which the workers who had complained to the Paudalho police were taken by the employer, Geraldo Guerra, to the same police station to withdraw their complaint "spontaneously". 725. Finally, still on the same plantation, controllers of the Institute of Weights and Measures who were making a visit were forced at gunpoint to return the scales and gauges which they had seized on the suspicion that they had been tampered with. 726. Similar manoeuvres are also reported from other plantations, including Taquarinha in the administrative district of Maraial, where José Ribeiro da Silva holds the concession and where, on 19 March 1983, an attempt was made on the life of the agricultural worker António Pedro da Silva by the employer's son-in-law, one Renato de Tal, because he had complained to his union, which is a member of the Federation of Agricultural Workers of the State of Pernambuco (FETAPE) about the invasion of his plot of land and the damage done to it. 727. Likewise, at Jacunde, in the administrative district of Ferreiros, on the plantation conceded to José Barbosa Pereira, an attempt was made on the life of the agricultural worker José Francelino Gomes on 17 March 1983 by the employer, who fired four shots at his house while he and his family were in it. The victim was forced to abandon the harvest of his 2-hectare plot and to change plantation, thus losing his rights to 17 days' paid leave and his severance pay. 728. Finally, at Araújo, in the administrative district of Sao Lourenço da Mata, on the Bulhoes concession, the union delegate was threatened on 2 February 1984 by the plantation supervisor who, revolver in hand, set fire to the premises of the union delegation, totally destroying its roof, in order to prevent the workers from meeting there. 729. The complainants consider that impunity encourages violence. They denounce the escalation of this violence which, they say, is particularly affecting the administrative districts of Carpina, Lagoa, Itaenga and Paudalho, and the fact that the federal inspectors of the Ministry of Labour and controllers of weights and measures have been prevented at gunpoint from carrying out their tasks. 730. They object to the unofficial power of the employers, who use force to back up their claims to flout the law and make attempts on the physical integrity and the lives of the workers, attacking the right to organise guaranteed by the Constitution and making a mockery of the federal supervisory institutions and the labour courts. 731. The complainants add that, on 20 May 1983, they went to see the Governor of the State of Pernambuco to hand him a document denouncing the violence in the Meta area and demanding the adoption of measures to punish the guilty parties. The Governor stated that it was necessary to ensure respect for law and order, and the FETAPE communicated to its council of representatives consisting of 152 unions the assurances it had received in this connection. However, FETAPE and CONTAG observe with regret the inefficacy of the police investigations conducted since that time, given the bias of the investigators who interpret cases of violence as disputes between workers. 732. In conclusion, the complainants demand that the private militias should be disarmed; that the police investigations should be placed in the hands of delegates capable of elucidating the facts in order to establish responsibilities and punish the guilty parties; that the Government should take a clear and unequivocal stand on respect for the rights of the rural workers of the sugar-cane growing area of Pernambuco, and in particular that the regional labour delegation should exercise systematic supervision accompanied by penalties; that the Sugar and Alcohol Institute should supervise the observance of the law respecting plots of land (Decree No. 57. 020); and that the federal highway police and the Transport Department should supervise the observance of the highway code. B. The Committee's conclusions 733. The Committee recalls that at its May-June 1985 Session the Governing Body advised the Government that, in conformity with its procedure, it might present a report on the substance of the case at its next meeting even if the Government's observations had not been received. The Committee has still not received these observations. 734. In these circumstances, and before examining the substance of the case, the Committee feels it necessary to recall the considerations set forth in its First Report (paragraph 31) which it has had cause to repeat on a number of occasions: the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating for objective examination detailed factual replies to such factual charges as may be put forward. 735. The Committee deeply regrets that the Government has not sent a reply; because of the time which has elapsed it is obliged to examine the case without taking account of the Government's observations. 736. The Committee observes that this case concerns acts of violence committed by sugar-cane plantation employers in the Meta region of the State of Pernambuco against workers who are only seeking the application of collective labour agreements. In particular, it notes the prohibition by these employers of access by trade union officials to plantations, the obstacles placed in the way of trade union activities, the burning of trade union premises, the stoppage of check-offs of trade union contributions demanded in advance by the workers, threats to kill rural workers and relatives of trade union officials which are sometimes even put into practice, and finally acts committed by certain planters against representatives of the public authorities carrying out inspections in these areas. 737. It appears from the information furnished by the complainants that the authorities exercised systematic supervision in these areas until the end of 1982, but that since then, despite the good will of the Governor of Pernambuco, certain planters have been behaving in a violent and illegal manner and are no longer subjected to penalties, since according to police investigations on the plantations such acts are allegedly due to disputes between workers. 738. Given the extreme seriousness of the allegations, which mention reprisals against workers in the sugar-cane plantations of the Pernambuco region who are simply demanding respect for the rights obtained in collective agreements, the Committee must recall the importance it attaches to the unimpeded exercise of trade union activities. 739. It accordingly urges the Government to take all necessary measures to guarantee a climate favourable to the exercise of trade union rights by the workers in this area and also requests it to indicate what measures have been taken to restore the trade union situation to normal and secure respect for collective agreements on these plantations. The Committee's recommendations 740. In these circumstances, the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions: (a) The Committee deeply regrets that, despite the many requests addressed to it, the Government has sent no written information on this complaint presented by the National Confederation of Agricultural Workers of Brazil in July 1984. (b) It draws the Government's attention to the fact that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and that the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating for objective examination detailed factual replies to such factual charges as may be put forward. (c) Regarding the substance of the case, given the extreme seriousness of the allegations, which mention reprisals against sugar-cane plantation workers in the Pernambuco area who are simply demanding respect for the rights obtained in collective agreements, reprisals which include forbidding trade union officials access to plantations, obstacles placed in the way of trade union activities, burning of trade union premises, the stoppage of check-offs of trade union contributions and threats to kill persons connected with trade union officials which are sometimes put into practice, the Committee must recall the importance it attaches to the unimpeded exercise of trade union activities. (d) The Committee accordingly urges the Government to take all necessary measures to guarantee a climate favourable to the exercise of trade union rights by the workers in this area and also requests it to indicate what measures it has taken to restore the trade union situation to normal and secure respect for collective agreements on these plantations. Case No. 1307 COMPLAINT PRESENTED BY THE WORLD FEDERATION OF TRADE UNIONS AGAINST THE GOVERNMENT OF HONDURAS 741. The Committee examined this case at its February 1985 meeting when it submitted an interim report to the Governing Body [see 238th Report, paras. 312 to 329, approved by the Governing Body at its 229th Session (February-March 1985)]. Subsequently, the Government submitted its observations in a communication dated 29 April 1985. 742. Honduras has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 743. When the Committee examined the case at its February 1985 meeting, two questions remained unresolved. The first of these concerned a decision taken by the judicial authority to suspend the legal personality of the National Power and Electricity Undertaking trade union for six months as a result of the strike held on 19 September 1984. The Committee requested the Government to provide information on this matter. 744. The second question remaining unresolved concerned the disappearance of the trade union leader, Gustavo Morales. The Committee requested the Government to communicate the results of the investigation being carried out by the authorities as a matter of urgency. B. The Government's reply 745. In its communication of 29 April 1985, the Government states that the decision taken by the judicial authority to suspend for six months the legal personality of the trade union of the National Power and Electricity Undertaking was appealed against in the Labour Appeals Court. The Government communicates the decision of the Appeals Court, dated 26 October 1984, revoking the judicial decision of the tribunal of first instance and reducing the period of suspension of legal personality from six to two months. Consequently, the legal personality of the above-mentioned trade union was restored on 21 November 1984. 746. Regarding the disappearance of the trade union leader, Gustavo Morales, the Government expressed its concern at the situation and stated that it would be in touch with the relevant authority for information on the investigations into the matter. C. The Committee's conclusions 747. The Committee notes the decision of the Labour Appeals Court of 26 October 1984, whereby the period of suspension of the legal personality of the trade union of the National Power and Electricity Undertaking was reduced from six to two months. Considering that, as a result of this decision, legal personality was restored to this trade union on 21 November 1984, and that the Committee concluded at its February 1985 meeting that the declaration of illegality of the strike held on 17 September 1984 in the National Power and Electricity Undertaking did not infringe the principles of freedom of association because the undertaking in question was providing an essential service in the strict sense of the term [see 238th Report, para. 326], the Committee considers that this aspect of the case does not call for further examination. 748. With respect to the disappearance of the trade union leader, Gustavo Morales, the Committee regrets not having received information on the outcome of the investigation into this matter, and requests the Government to communicate the results of this investigation. The Committee expresses the hope that the direct contacts mission accepted by the Government, and scheduled for January 1986, will be able to obtain information and discuss this question with the authorities. The Committee's recommendations 749. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) the Committee considers that the allegation concerning the suspension of the legal personality of the National Power and Electricity Undertaking trade union does not call for further examination; (b) regarding the disappearance of the trade union leader, Gustavo Morales, the Committee regrets not having received information on the outcome of the investigations into this matter and requests the Government to communicate the results of these investigations; (c) the Committee expresses the hope that the direct contacts mission accepted by the Government and scheduled for January 1986, will be able to obtain information and discuss this matter with the authorities. Case No. 1309 COMPLAINTS PRESENTED BY THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS, THE WORLD CONFEDERATION OF LABOUR, THE WORLD FEDERATION OF TRADE UNIONS AND OTHER TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF CHILE 750. The Committee examined this case at its February and May 1985 meetings, when it presented interim reports to the Governing Body. [See 238th Report, paras. 330 to 364 and 239th Report, paras. 298 to 340, approved respectively by the Governing Body at its 229th and 230th Sessions (February-March and May 1985).] 751. Since then, the ILO has received the following communications from the complainants: International Confederation of Free Trade Unions (ICFTU): 22 May 1985, 4 and 31 July 1985, 9 and 22 August 1985, 9, 24, 25 and 27 September and 7 October 1985; National Confederation of Workers' Trade Unions in Building, Wood, Building Materials and Related Activities: 15 May 1985; National Trade Union Co-ordinating Body (CNS): 23 May 1985; World Confederation of Organisations of the Teaching Profession (WCOTP): 30 May, 1 and 15 October 1985; the National Grouping of Workers: 3 June 1985; the World Confederation of Labour (WCL): 5 June 1985 and 3 October 1985; World Federation of Trade Unions (WFTU): 8 July 1985, 8 and 21 August 1985; Works Unions Nos. 1 and 6 of El Salvador and No. 8 of Sewell y Minas of the National Copper Corporation of Chile: 31 July 1985; Trade Unions International of Workers in the Metal Industry: 20 September 1985. The Government, for its part, furnished its observations in communications dated 8, 15 and 29 August, 11 September and 16 October 1985. 752. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the case 753. The complaints presented in the present case concerned a number of events that had taken place in Chile since September 1984. The allegations referred to the intervention of the forces of order on the occasion of the Protest Day held on 4 September 1984, which is said to have resulted in the death of ten persons, many injuries and over 1,000 arrests. The complainants referred in particular to the case of Juan Antonio Aguirre Ballesteros, who, they said, had been arrested and tortured and whose body had been subsequently found. In this connection, the Government indicated that inquiries were being carried out by the competent criminal courts. 754. It appeared, in the light of the allegations made, that the headquarters of certain trade union organisations (in particular the Confederation of Building Workers, the Professional Association of Teachers of Chile (AGECH) and the Chilectra trade union) had been attacked by the police and that material had been destroyed, documentation confiscated and trade unionists arrested. The Government denied that it had given orders for the trade union premises in question to be searched. Furthermore, on the day following the attack on the AGECH premises, Messrs. Manuel Guerrero, President of the metropolitan sector of this organisation and José Manuel Parada, an official of the Vicariat of Solidarity, were kidnapped in the street. Their bodies were subsequently found horribly mutilated. The Government stated that a judicial inquiry had been opened. 755. The complainants also referred to numerous arrests and the banishment of trade unionists. According to the Government, some of these trade unionists had not been arrested, others had been released and the reasons for the banishments were not related to trade union activities. 756. Finally, the Committee was informed of allegations concerning infringements of the exercise of the right to hold meetings, in particular taken against a works union of the National Copper Corporation. The Government had not replied to this allegation. 757. At its meeting of May-June 1985, the Governing Body approved the following conclusions of the Committee: (a) The Committee expresses its deep concern at the difficulties facing a large number of Chilean trade union organisations and their leaders. It considers that the Government should urgently take every measure necessary to put an end to this climate of violence; this implies that respect for the human rights essential for the development of trade union activities be guaranteed. (b) As regards the deaths which took place during the National Protest Day of 4 September 1984, the Committee requests the Government to supply information on developments in the inquiry opened into this matter and on its eventual results. (c) As regards the death of Messrs. Aguirre, Guerrero and Parada, the Committee expresses the firm hope that the inquiries under way in these matters will lead to the rapid determination of responsibilities; it requests the Government to continue to supply information on these inquiries. (d) As regards the attacks on trade union premises, the Committee deplores the fact that such acts have again been committed against trade union organisations. It notes that the Government denies having ordered searches of these premises and requests the Government to order that inquiries be undertaken with a view to finding the perpetrators of these acts which call for severe measures by the authorities against those found responsible. It requests the Government to supply information on any inquiries which have been carried out in this regard. (e) As regards the arrest and banishment of trade unionists, the Committee notes the information supplied by the Government, in particular, that some persons were not arrested and that others are free. It considers that the accumulation of these banishment measures considerably weakens trade union organisations by depriving them of their leaders and hindering their activities. It requests the Government to supply information on the situation of the persons - listed in the Annex - concerning whom it has not yet replied and on the concrete acts which were the basis for the measures taken against them. (f) As regards the obstacles to the right of assembly, the Committee notes with regret that the Government has not lifted them. It requests the Government to supply its observations on the allegations presented by the Works Union No. 6 of the National Copper Corporation. B. New allegations 758. In its communication of 22 May 1985, the ICFTU refers to a letter which was sent to it on 7 May 1985 by the Confederation of Copper Workers. The latter organisation alleges that on 27 April 1985, the homes of several of the leaders of the El Salvador trade union were searched in Diego de Amalgro when these persons were attending the National Congress of the Confederation. 759. On 1 May 1985, a leader of the same trade union was summoned to the carabineers' headquarters of El Salvador. On the same day, several leaders of the Andean zone trade union were arrested and held for several hours for having organised an athletics competition in the streets of Villa Minera Andina to celebrate the 1st of May, despite the fact that they had been granted authorisation to hold the event. 760. On 3 May 1985, Mr. Raúl Montecinos, leader of the Diego de Amalgro zone and national leader of the Confederation, was allegedly arrested and then transferred to the town of Copiapó. 761. The National Confederation of Worker' Trade Unions in Building, Wood, Building Materials and Related Activities and the National Grouping of Workers allege, in their communications of 15 May and 3 June 1985, that on 9 April 1985 the headquarters of the Building Confederation of Building Workers were illegally searched by a group of ten individuals armed with machine guns and whose faces were covered with balaclavas. This search, which was carried out without any legal warrant, involved the use of violence. The trade union leaders present were harassed, attacked and beaten. Furniture was broken and property taken away, including training materials and the archives of the Confederation. Several trade union leaders were threatened with death if they continued to exercise their activities. 762. Shortly later the same day, the complainant organisation alleges that officials of the carabineers appeared at the headquarters of the Confederation and interrogated the trade union leaders Figueroa Jorquera, Bustamante Garci and Alvarez, who were then taken to the police station and once again interrogated. 763. Furthermore, according to the complainant organisation, during the months of March, April and May 1985, several of its leaders were frequently followed, threatened or harassed. Since 9 April, carabineers have been controlling the entrance to the trade union headquarters and sometimes prevent trade union leaders and members from entering. 764. Given these circumstances, the Confederation lodged complaints and appeals for protection with the courts. It appears from these court proceedings that the staff of the National Information Centre, the carabineers of Chile and the civil investigation department of the police did not participate in the search carried out in the premises of the Confederation and that no warrant had been issued for the arrest of trade union leaders. 765. The complainant organisation adds that on 15 April 1985, the Minister of the Interior brought legal proceedings against four of its leaders, namely, Sergio Troncoso, José E. Rivera, José Manuel Bustamante and José Figueroa, for having violated the State Security Act, and in support of the case presented the documentation which had been seized during the paramilitary operation of 9 April carried out against the trade union headquarters. According to the complainant organisation, the links between the authorities and the group in question are thus clearly proven. 766. In its communication of 23 May 1985, the CNS mentions the banishment of several trade union leaders (see Annex), some of whom have been allegedly interned in a camp, at Conchi, in the north of the country. 767. The WCOTP also mentions, in its communication of 30 May 1985, several instances of the banishment of trade unionists in the teaching profession (whose names had already been communicated to the Committee), as well as the dismissal of several members and leaders of the Professional Association of Teachers of Chile (AGECH): Alban Mancilla, Orlando Aguilar, Luis Maldonado, Carlos Trujillo, Nelson Torres, all of whom are leaders or former leaders of the Castro Community Council, as well as Juan Ruiz, President of the Provincial Council of Puerto Montt. 768. In its communication of 4 July 1985, the ICFTU mentions the situation of Siergo Aguirre, President of the Union of Port Workers of San Antonio, who was dismissed from the civil service by a Supreme Decree after he had been banished. 769. The ICFTU also refers to the proceedings brought against four leaders of the Confederation of Building Workers. During the proceedings, Manuel Bustos, President of the CNS, was called upon to give evidence and, during the interrogation by the examining magistrate, the latter ordered his arrest. He was taken to the former public prison and locked up in a cell without any light. For three days he was given no water or food. He was released following the unanimous decision of the Eighth Chamber of the Court of Appeal. Three days after the release of Manuel Bustos, the four leaders of the Confederation of Building Workers were released on bail. 770. The National Grouping of Workers and the WCL also mention, in their communications of 3 and 5 June 1985, the arrest of Manuel Bustos. 771. In its communication of 8 July 1985, the WFTU refers to the case of Pedro Aroya Díaz Valdez, President of the Union of Professional and Technical Pilots, who was dismissed in 1984 because of his trade union activities. Furthermore, his organisation has been virtually destroyed. All his attempts to be reinstated in his work have been unsuccessful. 772. Works Unions Nos. 1 and 6 of El Salvador and No. 8 of Sewell y Minas of the National Copper Corporation as well as the ICFTU, in their communications of 31 July 1985, refer to the dismissal of Rodolfo Seguel, President of the National Copper Confederation. This measure was endorsed by the Supreme Court following an appeal presented by Mr. Seguel. According to the complainants, the effective inexistence of any protection of trade union leaders prevents the exercise of trade union mandates and jeopardises the autonomy of the trade union movement. Subsequently, the WFTU and the ICFTU sent, in their communications of 21 and 22 August 1985, the text of the judgement issued by the Supreme Court in this matter. 773. In their communications dated 8 and 9 August 1985, the WFTU and the ICFTU protest against the arrest of trade union leaders including Sergio Troncoso, President of the Confederation of Building Workers, and Juan Ponce who were subsequently banished to Melinka in the far south of the country. 774. The ICFTU points out, in its telegram of 9 September 1985, that a demonstration which had been called by the National Grouping of Workers (CNT) on 4 September 1984 was violently repressed. According to the ICFTU, ten persons were killed and hundreds were arrested. Charges were brought against several leaders of the CNT and, in particular, against Rodolfo Seguel, Manuel Bustos, José Ruiz di Giorgio and Sergio Troncoso. Subsequently, in communications dated 24 and 27 September and 3 October 1985, the ICFTU and the WCL point out that following a decision by three judges of the Supreme Court, a warrant was issued for the arrest of Rodolfo Seguel and Manuel Bustos who were imprisoned. José Ruiz di Giorgio, President of the Union of Petroleum Workers, Maria Rozas and Mercedes Jerez, leaders of the Professional Association of Teachers of Chile (AGECH), have also been arrested. The Trade Unions International of Workers in the Metal Industry also mentions the arrest and banishment of Claudio Gallardo, leader of the Confederation of Unions of Metallurgical Workers (CONSTRAMET). The WCOTP, for its part, alleges in its communication of 1 October 1985 that four national leaders of the AGECH were arrested on 30 September. They are Jorge Paveg, President; Samuel Bello, Treasurer; Luis Campo Leal and Carlos Poblete Avile, members of the National Executive Committee. 775. In its communication of 25 September 1985 the ICFTU supplies further details concerning the measures taken by the authorities following the demonstration of 4 September. According to the ICFTU, the purpose of this demonstration was to demand a reply from the Government to the "list of petitions and claims" of the workers adopted in August by the National Assembly of Leaders of the National Grouping of Workers. The Government allegedly responded to this Day of Protest by the arrest of 87 leaders of student, trade union and political organisations, including 13 leaders of the National Grouping of Workers and 17 leaders of the Professional Association of Teachers of Chile. Furthermore, 63 other persons were allegedly held in administrative detention for a period of 20 days. In the same way, more than 500 persons were allegedly arrested throughout the country during demonstrations. They were brought before the local police courts and accused of having instigated acts of disorder on the public thoroughfare. 776. In its communication of 7 October 1985, the ICFTU states that Manuel Bustos, Rodolfo Seguel and José Ruiz di Giorgio are still being held in detention. Seven other trade union leaders have allegedly been arrested and taken to Santiago prison (see Annex). The WCOTP refers in its communication of 15 October 1985 to the arrest of four AGECH leaders and states that, according to the organisers of the 4 September demonstration, acts of provocation had occurred. According to the WCOTP, it was observed that occupants of an unmarked car fired shots which apparently caused deaths and injuries. C. Replies of the Government 777. Before replying to the specific allegations made in the present case, the Government, in its communication of 11 September 1985, makes some general comments on freedom of association in Chile. It mentions, in particular, the current provisions regarding the acquisition of legal personality, the drafting of constitutions, the right to elect leaders, dissolution through the courts, the establishment of federations and confederations, affiliation to international organisations, trade union law and employment as well as trade union autonomy. After an examination of these various provisions, the Government concludes that in its view the national legislation embodies a strict application of the provisions of Conventions Nos. 87 and 98, although these instruments have not been ratified by Chile. 778. As regards civil liberties, the Government points out that although it believes that the political situation of the country goes beyond the subjects which should be dealt with by the Committee of Freedom of Association, the political Constitution of the Republic was adopted in 1980 by 67 per cent of the voters and that it establishes, after a period of transition, the full respect of the democratic system. The Government adds that because of experiences which have occurred in the country and the escalation in terrorism, which is affecting all the peoples of Latin America, the Constitution makes provision for exceptional measures to guarantee social peace in the country. These mechanisms include the state of seige when there is a situation of "internal shock" in the country. It was in virtue of this provision that the state of seige was proclaimed between 7 November 1984 and 17 June 1985. However, the Government points out that with a view to protecting freedom of association, Supreme Decree No. 1216 was adopted; it establishes regulations concerning the right of assembly and does not require any authorisation, but simply an advance notice of five days, for the holding of meetings by organisations endowed with legal personality in their own premises. 779. As regards the inquiry by a special judge into the disappearance and death of Mr. Antonio Aguirre Ballesteros, the Government points out that the legal proceedings are at the investigatory stage. In accordance with the Code of Penal Procedure, in force since 1907, this stage of the proceedings is carried out in secret. 780. With regard to the inquiry into the death of Messrs. José Manuel Parada, Manuel Guerrero and Santiago Natina, the Government also points out that the legal proceedings are at the investigatory stage. The examining magistrate has indicted two former police officers on the charge of having "falsified public documents". 781. With regard to the allegations concerning the attack against the premises of the National Democratic Development Project (PRODEN), the Government states, in its communication of 8 August 1985, that this body is a public company set up in accordance with the provisions of the Civil Code governing company contracts. The leaders of this company are former deputies of Congress and the premises which house its headquarters are not trade union premises. The police categorically reject the allegation that they entered these premises. 782. As regards the events which occurred in the headquarters of the Confederation of Building Workers, the Government explains in its communication of 11 September 1985 that on the day of the attack the carabineers of the Fourth Station went to the premises of the Confederation in order to investigate the offences committed. The carabineers found 20,000 political pamphlets of a subversive nature as well as abundant propaganda and material in support of doctrines which advocate the use of violence. The Minister of the Interior instructed the courts to carry out an inquiry and punish the guilty parties. Following this inquiry, the examining magistrate indicted Messrs. Troncoso, Figueroa, Rivera and Bustamante on charges of having infringed section 4(f) of the State Security Act (which punishes those persons who disseminate doctrines designed to destroy the republican and democratic form of the Government) and ordered their detention. 783. During the inquiry, the magistrate called Mr. Manuel Bustos as a witness and subsequently ordered his arrest, after interrogation, as a preventive measure in accordance with the powers conferred on him by the Code of Penal Procedure. Following an appeal for protection by his counsel, Mr. Bustos was released on the instructions of the Appeal Court of Santiago. Furthermore, the examining magistrate accepted a request for bail by the four leaders of the Confederation. This measure was approved on 7 June 1985 by the Appeal Court of Santiago. Subsequently, on 22 July 1985, the examining magistrate ordered the dismissal of the charges against the accused, thus putting an end to the proceedings, since there was insufficient evidence to bring charges against certain persons. The matter is therefore closed. 784. As regards the allegations concerning the arrests made after a search was carried out of the premises of the Chilectra trade union, the Government explains that a clandestine meeting had been held on these premises of political parties which had been declared illegal because of their support of terrorism. The purpose of this meeting was to pay homage to the Socialist Party of Chile and its founder. The participants included persons from outside the Chilectra trade union and the Chilean electricity undertaking and had no relation, even of an indirect nature, with trade union activities. The persons arrested were released after their identity had been verified. Messrs. Victor Hugo Gac and Eugenio Madrid Salgado were banished to Chaiten for a period of three months and Mr. Manuel Dinamarca to Ciudad de Palena for the same period. At the present time, these persons are free to move throughout the country, since their banishment has terminated. 785. As regards the events which occurred at Villa Minera Andina on 1 May 1985, the Government points out that each year the workers of this town celebrate the labour day holiday by organising in particular a religious ceremony, a football championship and athletic events in the streets of the town. The Government adds that because of police regulations, prior authorisation must be requested to hold such events in the public thoroughfare. However, the athletic event was held in the streets without such authorisation. There was a traffic accident in which several persons were injured. The police officer who made the report arrested the person apparently responsible for the accident, Mr. Arturo Uribe, director of one of the organising trade unions. Other trade union leaders accompanied him to the police station. Subsequently, the Chief of Police ordered the immediate release of all persons detained. The Government states that another person mentioned by the complainants, Mr. Raúl Montecinos, is free and that it has no information on the alleged searches carried out in the homes of trade union leaders. 786. Furthermore, the Government provides information on the persons mentioned as having been arrested and banished in the Committee's 239th Report (see Annex). The Government points out that the banishments in question were ordered by virtue of the powers vested in Head of State by the Constitution during the state of siege. On 17 June 1985 the state of siege which had been in force since 7 November 1984 was lifted. Under the Constitution, the period of banishment may not exceed 90 days. The events which led to these measures were participation in clandestine activities of partisan politics which had no relation to trade union activities. At no moment, the Government points out, did it attempt to weaken the trade union movement by depriving it of its leaders or hindering its activities. In conclusion, on this point the Government believes that the information supplied shows that there has never been an atmosphere of violence against the trade unions. It does not share the opinion expressed in the conclusions of the Committee because the latter has generalised cases of an exceptional nature and has erroneously equated violent acts with trade union activities. 787. As regards the allegations concerning the right of assembly, the Government reaffirms that during the state of siege, meetings of trade union organisations endowed with legal personality may take place in their own premises without prior authorisation, provided that an advance notice of five days is given to the office of the provincial governor. On 17 June 1985 the state of siege was lifted and replaced by a state of emergency for a period of 90 days, because of the existence of internal danger to national security. The Directorate of the zone declared to be in a state of emergency in the metropolitan region and the Province of San Antonio passed a decree establishing that meetings of organisations endowed with legal personality, assemblies for the establishment of trade unions and federations, as well as meetings organised in the exercise of the rights of workers and of legally recognised trade unions do not require authorisation, provided that they are held in the premises of the organisation and that their exclusive purpose is to examine matters considered under the legislation relevant to their objectives. 788. Concerning the allegation regarding the prohibition of a meeting of Works' Union No. 6 of CODELCO, El Salvador Division, the Government points out, in its communication of 29 August 1985, that reasons of internal security obliged the authorities to suspend the right of assembly during these days. This exceptional situation did in no way paralyse trade union activity since during this period eight trade union meetings were held in the second fortnight of March by the trade unions of the El Salvador Division as well as elections by the complainant organisation on 2 July 1985. An appeal for protection was lodged with the Appeal Court of Copiapó and was rejected. 789. As regards the situation of Mr. Pedro Araya, leader of the National Trade Union of Professional Pilots and Technicians of the Lan-Chile company, the Government states, in its communication of 11 September 1985, that this trade union changed its executive on 6 and 13 September 1984; only three persons out of a total of 18 members participated in the vote. The undertaking then asked the Appeal Court of Santiago to dissolve the trade union under section 52(d) of Legislative Decree No. 2756 respecting trade union organisations, which makes provision for a minimum number of members (for works unions 25 members, representing at least 10 per cent of all the workers in the undertaking). On 23 November 1984, the Appeal Court declared the trade union dissolved. Following an appeal by the union executive to the Supreme Court, the latter confirmed the initial ruling. On 30 April 1985, before the Labour Inspectorate of Maipú, Mr. Pedro Araya, signed an end-of-service receipt and received compensation equivalent to US$31,000. 790. As regards the situation of Mr. Rodolfo Seguel, the Government states, in its communication of 15 August 1985, that he was dismissed from the CODELCO undertaking on 12 July 1983 for reasons which are covered by section 15, Nos. 3 and 4 of Legislative Decree No. 2200, in relation with the State Security Act No. 12927 of 1958, namely numerous acts likely to cause and promote work stoppages in the El Teniente Division as well as other unlawful acts. Mr. Seguel's defence counsel subsequently asked the Second Civil Court of Rancagua to revoke the dismissal. On 12 March 1984, the court rejected the appeal and thus confirmed the dismissal. Following an appeal lodged by Mr. Seguel's counsel, on 28 June 1984, the Appeal Court of Rancagua annulled the ruling of the court of first instance. The CODELCO undertaking then lodged an "appeal of complaint" with the Supreme Court which, on 18 July 1985, confirmed the ruling issued by the court of first instance. Following a further appeal for "re-examination" lodged by Mr. Seguel's counsel, the Supreme Court, in a unanimous decision of the members of the competent chamber, confirmed the dismissal. The Government points out that it was thus as a result of a decision by the judicial authorities and not the Government that Mr. Seguel was disqualified from exercising the trade union functions which he had held. 791. The Government points out in this connection that the statutes of the Confederation of Copper Workers stipulate, in article 21, that the loss of the status of leader of an affiliated trade union entails the loss of the status as member of the Executive Council of the Confederation. Furthermore, the statutes of the first level trade union stipulate that in order to be a trade union leader a worker must be employed in the undertaking. Despite his dismissal, Mr. Seguel had been leader of the Caletones occupational trade union, No. 1 of the El Teniente Division. 792. The Government points out that Mr. Seguel may not exercise trade union functions in the Confederation of Copper Workers pursuant to the statutes which the workers themselves have established. On the basis of several principles of the Committee on Freedom of Association in this respect, the Government believes that the proceedings have respected freedom of association. In the Annex to its communication the Government includes the judgements of the courts of first and second instance as well as the final decision of the Supreme Court. 793. As regards the allegations concerning the arrest of Mr. Sergio Troncoso, the Government points out that this person was arrested for encouraging disorder and incidents in the street. He was banished to Melinka on 6 August 1985 and then transferred to Puerto Cisnes on 22 August. The Government adds that the other person mentioned by the complainants, Mr. Juan Ponce, has not been arrested or banished. 794. As regards the events which took place during the demonstration of 4 September 1985, the Government states in its communication of 16 October 1985 that the Ministry of the Interior has requested the courts to determine the responsibility of the instigators, organisers and promoters of this protest day as well as that of the participants. The Santiago Court has indicted Messrs. Seguel and Bustos on charges of violations of several provisions of the State Security Act (meetings aimed at the overthrow of the Government or at conspiracy against its stability; calling of public meetings in public places without authorisation or liable to disturb public order; inciting the interruption of collective suspension of or strikes in public services or public utilities which involve disturbances of public order or in these services). The Court held Messrs. Seguel and Bustos to be repeated offenders. Following an appeal by their defence counsel, the Supreme Court unanimously confirmed the decision of the Court of First Instance. The four AGECH leaders were also arrested for their participation in the demonstration of 4 September 1985. According to the Government, this day of protest led to ten deaths, the serious wounding of 18 police officers, over 100 injured persons, damage amounting to 100 million pesos caused by violent acts and serious damage to public property. The judicial proceedings instituted against the responsible parties is at present continuing. D. The Committee's conclusions 795. The Committee has taken note of the detailed replies furnished by the Government concerning the various aspects of this case. It has also noted the general comments made by the Government concerning the trade union situation in Chile. Although it shares the opinion of the Government that political questions do not fall within its sphere of competence, the Committee must stress the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties that "the rights conferred upon workers' and employers' organisations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights and that the absence of these civil liberties removes all meaning from the concept of trade union rights". The Committee therefore believes that it is empowered, within the terms of its mandate, to examine to what extent the exercise of trade union rights may be affected in cases which allege the infringement of civil liberties. 796. As regards the inquiries carried out into the deaths of Messrs. Aguirre, Parada, Guerrero and Natina, the Committee notes that the proceedings are still at the investigatory stage and that in the case concerning the three last mentioned persons, charges have been brought against two former police officers. The Committee, while observing the excessive duration of these investigations, expresses its firm hope that they will be completed very soon and will result in the determination of responsibilities so that the guilty parties can be punished. The Committee requests the Government to keep it informed of any developments in these matters. 797. As regards the attacks against trade union premises, the Committee notes that, according to the Government, the forces of order did not enter these premises except in the case of the Confederation of Building Workers where they made inquiries concering precisely the assault on the trade union headquarters which had taken place a few hours before. In these circumstances, the Committee can only stress the importance of protecting trade union premises and the need to shed light on these incidents which have occurred on several occasions. The Committee therefore urges the Government to initiate judicial inquiries into the matter so that the perpetrators of such acts, which are particularly prejudicial to the exercise of trade union rights, may be identified as soon as possible. It requests the Government to keep it informed in this respect. 798. As regards the arrest and banishment of trade unionists, the Committee notes that the persons mentioned in the Annex to its previous report have regained their freedom of movement. It points out, however, that despite the lifting of the state of siege, several allegations refer to new arrests and banishments concerning which the Government has supplied certain information (see Annex). In the Committee's opinion the repeated application of measures of this type cannot but prove detrimental to labour relations in the country. The Committee therefore requests the Government, with a view to restoring a climate of social peace and normal trade union activity, to take the necessary measures to end these banishments as soon as possible. It requests the Government to keep it informed of all steps taken to this end. 799. Furthermore, the Committee notes that several trade union leaders (Messrs. Troncoso, Fugueroa, Rivera, Bustamente and Bustos) have been either indicted or taken into custody and then released following the dropping of charges. In this respect the Committee must point out that the arrest by the authorities of trade unionists against whom no subsequent charges are brought may involve restrictions on freedom of association. Governments should take measures to ensure that the authorities concerned receive appropriate instructions to prevent the dangers involved for trade union activities by unjustified measures of arrest. [See, in this regard, 207th Report, Case No. 963 (Grenada), para. 229; 211th Report, Case No. 1025 (Haiti), para. 272.] 800. The Committee has, furthermore, received more recent allegations concerning the indictment of several trade union leaders including Messrs. Seguel and Bustos, and of their arrest following a demonstration organised by the National Grouping of Workers. The Committee notes that, according to the Government, these measures were taken by the courts on the basis of offences committed under the State Security Act. It notes that among the provisions referred to by the courts is that concerning the organisation of strikes in public services which, in the present case, took place during the national day of protest. It recalls in this connection that trade union organisations should be able to have recourse to protest strikes with a view to defending the economic and social interests of their members. The Committee requests the Government to supply information on the outcome of the judicial proceedings under way against those responsible for and the organisers of the day of protest. 801. As regards the right of assembly, the Committee has noted the explanation supplied by the Government concerning the prohibition of a meeting by Works Union No. 6 of CODELCO, El Salvador Division, and its statements concerning the new provisions adopted in this respect during the state of emergency. It notes in particular that under certain circumstances, no prior authorisation is required for trade union meetings held within the premises of the organisations. The Government does not, however, state whether the authorities must be notified of these meetings. In general, the Committee must once again point out that freedom of trade union assembly is one of the fundamental aspects of trade union rights and that the public authorities should refrain from any intervention likely to limit this right or impede its lawful exercise. 802. The Committee has also been informed of several allegations concerning the dismissal of trade union leaders in the teaching, aviation, ports and mines sectors. The Government transmitted replies on the dismissal of Messrs. Pedro Araya, President of the Union of Professional and Technical Pilots, and Seguel, leader of the Confederation of Copper Workers. The Committee notes in particular that Mr. Pedro Araya accepted compensation for his dismissal after his trade union had been dissolved by the courts because of insufficient membership numbers. In this respect, the Committee recalls that it does not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law for cases of unfair dismissal, to get rid of any worker when the true reason for dismissal is his trade union membership or activity. [See, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163.] 803. As regards the case of Mr. Seguel, the Committee notes that this person was dismissed after judicial proceedings, according to the Government, for having carried out in particular acts to instigate or encourage work stoppages. In these circumstances, the Committee must observe that Mr. Seguel's dismissal was due to acts which he carried out in pursuance of his trade union responsibilities and that such a dismissal is therefore a measure of anti-union discrimination. This measure is all the more serious since under the legislation and statutes of the Confederation of Copper Workers, Mr. Seguel can no longer be empowered with a trade union mandate. When trade union leaders are dismissed for having exercised their right to strike, the Committee cannot but conclude that they have been punished for their trade union activities and are the subject of anti-union discrimination. The fact that a judicial authority intervenes in the dismissal procedure does not necessarily constitute, in the opinion of the Committee, a sufficient guarantee against acts of anti-union discrimination, since the powers of the judges in question are limited to ensuring that the national legislation has been correctly applied. Furthermore, the dismissal of a trade union leader is liable to infringe the freedom of action of his organisation and its right to elect its representatives in full freedom, and may even leave the way open for acts of interference by the employer. [See, for example, 147th Report, Case No. 667 (Sudan), para. 222.] 804. The Committee notes furthermore that the Government has not replied concerning the dismissals of trade union leaders in the teaching sector (Messrs. Mancilla, Aguilar, Maldonado, Trujillo, Torres) and in the port sector (Mr. Aguirre). The Committee requests the Government to supply its observations in this respect. The Committee's recommendations 805. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) The Committee notes that, since its last examination of this case, several matters which had been the subject of allegations before the Committee have not been dealt with by the administrative authorities, but have been placed before the judiciary. (b) As regards the inquiries carried out into the death of Messrs. Aguirre, Parada, Guerrero and Natina, the Committee notes that proceedings are still at the investigatory stage. While observing the excessive duration of these investigations, it expresses the firm hope that these inquiries will be concluded rapidly and will result in the determination of responsibilities so that the guilty parties can be punished. The Committee requests the Government to keep it informed of developments in these matters. (c) As regards the attacks against trade union premises, the Committee notes that, according to the Government, the forces of order did not enter these premises. The Committee stresses the importance of protecting trade union premises. It urges the Government to initiate judicial inquiries into the matter so that the responsible parties may be identified as soon as possible and requests the Government to keep it informed in this respect. (d) As regards the arrest and banishment of trade unionists, the Committee notes that the persons mentioned in the Annex of its previous report have regained their freedom of movement. It observes, however, that despite the lifting of the state of siege, several allegations refer to new arrests and banishments concerning which the Government has supplied certain information. The Committee requests the Government, with a view to restoring social peace and normal trade union activities, to take the necessary measures to end these banishments as soon as possible. It also asks the Government to keep it informed of all steps taken to this end. (e) As regards the indictment and preventive detention of trade union leaders, the Committee points out that the arrest by the authorities of trade unionists against whom no subsequent charges are brought may involve restrictions to freedom of association. The Government should take measures to ensure that the authorities concerned receive appropriate instructions to prevent the dangers involved for trade union activities by unjustified measures of arrest. The Committee reminds the Government that trade union organisations should be able to have recourse to protest strikes with a view to defending the economic and social interests of their members. It requests the Government to supply information on the outcome of the judicial proceedings under way against those responsible for and the organisers of the day of protest held on 4 September 1985. (f) As regards the right of assembly, the Committee recalls in general that freedom of trade union assembly is one of the fundamental aspects of trade union rights and that the public authorities should refrain from any interference which is likely to limit this right or impede its lawful exercise. (g) As regards the dismissals of trade union leaders, the Committee points out that the dismissal of a trade union leader is liable, by reason of the fact that dismissal causes him to lose his status as a trade union officer, to infringe the freedom of association of his organisation and its right to elect its representatives in full freedom and may even leave the way open for acts of interference by the employer. The Committee requests the Government to furnish its observations concerning the dismissals of trade union leaders in the teaching and port sectors. ANNEX LIST OF PERSONS MENTIONED BY THE COMPLAINANTS AS HAVING BEEN ARRESTED AND THE GOVERNMENTS'S REPLIES CONCERNING THEM ABARZUA Sergio Banishment ended in advance of scheduled date on 31 December 1984. AGUILAR Juan Banishment ended on 18 March 1985. ARANCIBIA Julio Banishment ended in advance of scheduled date on 24 January 1985. ARANCIBIA Miguel Banishment ended in advance of scheduled date on 13 May 1985. ARANCIBIA Oscar Banishment ended on 23 March 1985. ARAYA Jorge Banishment ended in advance of scheduled date on 17 January 1985. AREVALO Vladimir Banishment ended on 21 March 1985. BUSTAMANTE Manuel Charged with violation of the State Security Act. Released on bail. Case closed following the dismissal of charges. CASTRO Ricardo Banishment ended on 23 March 1985. CELEDON Luis No information concerning any arrest. COLOMA José Banishment ended on 23 March 1985. DEL RIO Rolando Banishment ended in advance of scheduled date on 10 February 1985. DINAMARCA Manuel Banishment ended on 30 July 1985. DINAMARCA Neftalí Banishment ended on 1 March 1985. ELOY Oscar Banishment ended on 23 March 1985. ESCOBAR Vladimir Banishment ended in advance of scheduled date on 24 January 1985. ESTORGIO José Charged with violation of the State Security Act. Released on bail. Case closed following the dismissal of charges. FAUNDEZ Luis Banishment ended on 28 February 1985. FIGUEROA Luis Charged with violation of the State Security Act. Released on bail. Case closed following the dismissal of charges. FUENTES Adrián Banishment ended on 15 July 1985. FUENTESECA Douglas Banishment ended on 4 March 1985. GAC Victor Hugo Banishment ended on 30 July 1985. GARCIA Patricio No information concerning any arrest. GUTIERREZ Jorge Banishment ended on 26 February 1985. GUTIERREZ Luis Banishment ended on 23 March 1985. LEAL René Banishment ended on 28 February 1985. LILLO Pedro Banishment ended in advance of scheduled date on 24 January 1985. LOYOLA Eduardo No information concerning any arrest. MADRID Eugenio Banishment ended on 30 July 1985. MANRIQUEZ Victor Banishment ended in advance of scheduled date on 17 January 1985. MARILEO Domingo Banishment ended on 4 April 1985. MILLAN Hector Banishment ended on 28 February 1985. PILQUIL Manuel Banishment ended on 4 April 1985. SANTOS José Banishment ended on 4 April 1985. SIERRA de la FUENTE Benjamin Banishment ended on 23 March 1985. SOVAL Sergio No information concerning any arrest. SUAREZ Antonio Banishment ended in advance of scheduled date on 17 January 1985. TAPIA Lino Banishment ended on 23 March 1985. TRONCOSO Sergio Charged with violation of the State Security Act. Released on bail. Case closed after dismissal of charges. Subsequently banished to Melinka and then to Puerto Cisnes. VALENCIA Guillermo Banishment ended in advance of scheduled date on 17 January 1985. VALENZUELA José Banishment ended in advance of scheduled date on 24 January 1985. AGUIRRE Sergio Banishment ended in advance of scheduled date on 20 May 1985. ARCOS Humberto Banishment ended in advance of scheduled date on 17 January 1985. AVENDAÑO Enrique Banishment ended in advance of scheduled date on 17 January 1985. CANCINO Segundo Banishment ended in advance of scheduled date on 17 January 1985. CUETO Carlos Banishment ended on 29 June 1985. DIANTA Pablo Banishment ended on 29 June 1985. OLIVARES Sergio Banishment ended on 18 March 1985. OPAZO Carlos Banishment ended in advance of scheduled date on 17 January 1985. ORDENES Luis de Cruz Banishment ended on 29 June 1985. PEÑA Luis Banishment ended in advance of scheduled date on 17 January 1985. SANCHEZ Salatiel Banishment ended on 29 June 1985. ZAPATA Darió Banishment ended on 29 June 1985. MONTECINOS Raúl No information concerning any arrest. PONCE Juan Neither arrested nor banished. BUSTOS Manuel Charged and arrested for violation of the State Security Act. SEGUEL Rodolfo Charged and arrested for violation of the State Security Act. PAVEZ Jorge Arrested for participating in the demonstration of 4 September 1985. BELLO Samuel Arrested for participation in the demonstration of 4 September 1985. CAMPO Luis Arrested for participation in the demonstration of 4 September 1985. POBLETE Carlos Arrested for participation in the demonstration of 4 September 1985. LIST OF PERSONS MENTIONED BY THE COMPLAINANTS AS HAVING BEEN ARRESTED AND ALLEGATIONS CONCERNING THEM, ON WHICH THE GOVERNMENT HAS NOT YET SENT INFORMATION ARAYA Lorenzo President of the Autofagasta Building Worker's Trade Union, banished to Lago Verde. PIANTA Pablo Leader of the San Antonio Building Worker's Trade Union, banished to Toconao. RIVAS Abraham Treasurer of the Concepción Building Worker's Trade Union, banished to Sierra Gorda. DEIJ Antonio Secretary of the Concepción Building Worker's Trade Union, banished to Conchi. RUIZ di GIORGIO José President of the Petroleum Workers' Trade Union, arrested. ROZAS María AGECH leader, arrested. JEREZ Mercedes AGECH leader, arrested. GALLARDO Claudio CONSTRAMET leader, arrested and banished. MARTINEZ Arturo President of the Confederation of Workers in the graphics industry; arrested. SOTO Humberto Secretary-General of the Unitary Front of Workers; arrested. LILLO Edmundo President of the National Federation of Workers in Commerce; arrested. OSORIO Eduardo AGECH leader; arrested. FIGUEROA José Substitute President of the Confederation of Building Workers; arrested. RIVERA José National leader of the Confederation of Building Workers; arrested. Case No. 1326 COMPLAINTS PRESENTED BY THE WORLD FEDERATION OF TEACHERS' UNIONS AND THE SRAMIK KARMACHARI OKKYA PARISHAD AGAINST THE GOVERNMENT OF BANGLADESH 806. The World Federation of Teachers' Unions presented a complaint of violations of trade union rights in a communication dated 3 April 1985. The Sramik Karmachari Okkya Parishad, jointly with the following 14 Bangladeshi trade union federations, presented its complaint on 27 May 1985: Bangladesh Workers Federation, Bangladesh Trade Union Sangha, Bangladesh Federation of Labour, Bangladesh Trade Union Kandra, Jatio Sramik Federation, Ganatantrik Sramik Andolon, Jatio Sramik League, Samaj Tantrik Sramik Federation, Jatio Sramik Jote, Sangukta Sramik Federation, Jatio Sramik League - Bangladesh, Bangla Sramik Federation, Bangladesh Sramik Federation, Jatiotabadi Sramik Dal. The Government replied in a communication dated 29 June 1985. 807. Bangladesh has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No.98); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151). A. The complainants' allegations 808. In its communication of 3 April 1985, the World Federation of Teachers' Unions alleges the detention, at the beginning of March, of several teachers including Mr. Shareful Islam and Mr. Ppal Abdul Mannan, President and Secretary-General respectively of the Bangladesh College Teachers' Association (BCTA), an affiliate of this complainant, after the reimposition of martial law on 1 March 1985. The complainant states that they have been sentenced to one month's detention by application of the Special Power Act No. 74. It points out that Mr. Shareful Islam has already suffered, in the past, several months' imprisonment because of his trade union activities. It denounces the Government of Bangladesh for violations of Conventions Nos. 87, 98, 151 and the joint ILO/UNESCO Recommendation on the Status of Teachers of 1966. It fears that the detention will be extended and requests the cessation of proceedings and the release of the imprisoned teachers. 809. In the communication of 27 May 1985 presented jointly by a total of 15 Bangladeshi trade union federations, it is alleged that the Government has violated Conventions Nos. 87 and 98 by the introduction of martial law on l March 1985. According to the federations, under martial law, trade union activities are banned as are the holding of meetings, collective bargaining and strikes. 810. The complainants state that the Government has arrested many trade unionists without giving reasons and has held them in custody over the last few months without trial. 811. More specifically, the complainants refer to the following legislation as infringing freedom of association: the Industrial Relations Ordinance of 1969 (which restricts the right to join trade unions of public servants and management staff and which restricts election to union office to those employed in the particular establishment); Rule 10 of Industrial Relations Regulations of 1977 (which empowers the Registrar of Trade Unions to enter trade union premises and inspect or seize any union record). The complainants also allege that public sector employees and public servants are denied the right to bargain collectively. B. The Government's reply 812. In its communication of 29 June 1985, the Government states that there is no registered trade union in Bangladesh named the "Bangladesh College Teachers' Association" and that Mr. Shareful Islam and Mr. Abdul Mannan are not known in the trade union sphere as trade union leaders. 813. Moreover, according to the Government, the law prohibits any trade union activity by any organisation which has not been registered under the Industrial Relations Ordinance and such activity would be a penal offence. Nevertheless, no prosecution proceedings have been commenced by the Registrar of Trade Unions against the persons in question. The Government states that it is examining the case very carefully and will furnish detailed information shortly. C. The Committee's conclusions 814. The Committee notes that this case concerns the re-imposition of martial law in Bangladesh on l March 1985 and the alleged consequent arrest of several teachers including two teachers' union leaders, Mr. Shareful Islam and Mr. Abdul Mannan. The complainants also allege that the current labour legislation infringes the principles of freedom of association. 815. The Committee observes that, although one of the complainants infers that Mr. Shareful Islam was arrested because of his trade union activities, the Government denies that the two named individuals are known in the trade union sphere as trade union leaders and that proceedings have been instituted against them by the Registrar of Trade Unions. It also points out that there is no registered trade union of the name of their organisation, namely the Bangladesh College Teachers' Association. In this respect, the Committee recalls that it has already had occasion to examine similar allegations against the Government of Bangladesh concerning Mr. Shareful Islam when he was Secretary-General of the Bangladesh College Teachers' Association (Case No. 1246 examined in the Committee's 234th Report, paras. 66 to 74, approved by the Governing Body at its 226th Session, May-June 1984). In that case the Government recognised both the existence of the trade union association involved and Mr. Islam's role in it. 816. The Committee regrets that the complainant organisations, despite having opportunities to do so, did not supply more detailed information as to the circumstances surrounding the alleged arrests, in particular the arrest of Mr. Abdul Mannan and Mr. Islam. However, in view of the fact that at least in the case of Mr. Islam, his trade union role and activities have been put forward as the sole basis for the action taken against him, the Committee would stress that, in such cases, it has considered it incumbent upon the Government to show that the measures taken were in no way occasioned by the trade union activities of the individual concerned. [See, for example, 103rd Report, Case No. 536 (Gabon), para. 292.] Given that the Government has undertaken to supply further information, the Committee hopes that details will be forthcoming as to whether any arrests took place (and, if so, for what reasons and on the basis of which legislation, i.e. under the Special Power Act No. 74, under the Industrial Relations Ordinance or other legislation), so as to enable it to reach conclusions on this aspect of the case in full knowledge of the facts. 817. As regards the alleged restrictions on trade union rights consequent on the re-introduction of martial law and the specific restrictions on the freedom of association and collective bargaining rights of public employees contained in the labour legislation, the Committee notes that the ILO Committee of Experts on the Application of Conventions and Recommendations, in its l985 examination of the Government's compliance with its obligations under Conventions Nos. 87 and 98, pointed to several discrepancies between the rights guaranteed under these Conventions and the present legislation. 818. In particular, the Committee of Experts in its observation concerning Convention No. 87 noted that, under section 2(xxviii)(b) of the Industrial Relations Ordinance, the definition of a worker excludes a person who is employed in a managerial or administrative capacity. It noted the Government's statement that it is not possible to determine the nature of the employment covered by this provision or the number of persons concerned. The Committee of Experts pointed out that, by virtue of Article 9 of Convention No. 87, only the armed forces and the police may be excluded from the scope of the Convention and that the rights it sets forth must, therefore, also be recognised to public servants and managerial staff. It requested the Government to adopt appropriate measures to guarantee the application of the principles of the Convention to these categories of workers. The Committee of Experts also observed that section 7A(l)(a)(ii) and (b) of the Industrial Relations Ordinance limits the right to be a member or officer of a trade union to persons actually employed in an establishment or group of establishments concerned. It considered that a provision of this kind restricts the right of workers to establish and to join organisations of their own choosing (Article 2 of Convention No. 87), to elect their representatives in full freedom and to organise their administration and activities (Article 3). It noted with interest the Government's statement that it was prepared to examine these provisions and that measures to ease them are under study, and pointed out that the free exercise of the right to establish and to join unions implies the free determination of the structure and composition of unions. It also considered that restrictive conditions attached to trade union office constitute interference in the internal affairs of the unions. The Committee of Experts, therefore, hoped that these provisions would be repealed in the near future. In addition, the Committee of Experts noted that, under Rule 10 of the Industrial Relations Regulations, 1977, the Registrar or any other officer authorised by him may enter the premises of a trade union or federation of trade unions and inspect and seize any record, register or other document. This procedure, under which an administrative authority has wide powers of supervision over the internal affairs of a trade union, is, according to the Committee of Experts, incompatible with the right of workers to organise their administration (Article 3 of Convention No. 87). The Committee again requested the Government to reconsider this provision. 819. In its 1985 observation concerning Bangladesh's observance of Convention No. 98, the Committee of Experts emphasised that, under Article 4 of this Convention, it is the responsibility of the Government to take appropriate measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation, and noted that it had previously observed that, under the State-Owned Manufacturing Industries Act, No. X of 1974, the Government may determine wages and other conditions of employment (leave) for any worker employed in this sector. Referring to its General Survey submitted to the 69th (1983) Session of the International Labour Conference, particularly paragraph 311, the Committee of Experts pointed out that the right to negotiate wages and conditions of employment freely with the employers and their organisations is a fundamental aspect of freedom of association and that if, for compelling reasons of national economic interest, a government considers that wage rates cannot be fixed freely through collective agreements, such a restriction should be imposed as an exceptional measure and only so far as is necessary, without exceeding a reasonable period and should be accompanied by adequate safeguards to protect the living standards of the workers. It accordingly requested the Government to reconsider the situation in the light of these comments, with a view to restoring voluntary bargaining in the sector concerned. 820. Despite the lack of a specific reply from the Government on the legislative aspect of the case, the Committee can only recall the Committee of Experts' request that the Government reconsider the legislative situation with a view to bringing the legislation into conformity with the principles of freedom of association. It reaches this decision in particular since, in past cases [See 235th and 238th Reports, Cases Nos. 997, 999 and 1029 (Turkey), paras. 33 and 36], the Committee has stressed that martial law is incompatible with the full exercise of trade union rights. The Committee's recommendations 821. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions: (a) in view of the lack of information from both the complainants and the Government concerning the alleged arrest of two named teachers' union leaders, the Committee hopes that the further reply promised by the Government will shed light on the circumstances so as to enable it to reach conclusions on this aspect of the case in full knowledge of the facts; (b) the Committee recalls the Committee of Experts' request - made in the context of its 1985 examination of the Government's application of Conventions Nos. 87 and 98 - that the Government reconsider the legislative situation regarding the right to organise of managerial and administrative employees, election to trade union office, administrative powers of supervision over the internal affairs of unions and collective bargaining in State-owned manufacturing industries, so as to bring the legislation into conformity with the principles of freedom of association. Case No. 1330 COMPLAINT PRESENTED BY THE NATIONAL ASSOCIATION OF AGRICULTURAL, COMMERCIAL AND INDUSTRIAL EMPLOYEES AND FIVE OTHER TRADE UNIONS AGAINST THE GOVERNMENT OF GUYANA 822. The complaint is contained in a communication from the National Association of Agricultural, Commercial and Industrial Employees (NAACIE) dated 9 April 1985. The Government replied in a communication dated 31 July 1985. 823. Guyana 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). It has also ratified the Labour Relations (Public Service) Convention, 1978 (No. 151). A. The complainants' allegations 824. The complainants allege that fundamental norms and principles proclaimed in accepted international labour practice are being deliberately and systematically flouted as a result of government policy; that freedom of association and trade union rights have come under assault as a result of deliberate government action, including the concurrent holding of public office and of positions of responsibility within the Trade Union Congress by government ministers and senior public officials and through the employment of intimidation to prevent the recognition of freely chosen trade unions. In addition it is alleged that the right of collective bargaining has been directly attacked through the Government's imposition of a negotiating partner for public sector employees, and by the removal of contractual rights through the Labour Amendment Act. 825. In a memorandum contained in its communication, the complainant sets out details concerning a number of industrial disputes which it alleges involved discriminatory and or intimidatory action against workers and trade union officials who had been engaged in strikes which had occurred in March and May 1983 respectively in government-owned enterprises in the packaging and the mining industries; and provides instances of such action which it alleges was taken against trade union members and officials in other state-owned enterprises. It also provides information relating to events which took place in March 1984 in relation to the sugar industry concerning workers employed by the Guyana Sugar Corporation, which it alleges gave rise to the passage of the Labour Amendment Act and elaborates its objections to this legislation which it claims, inter alia, altered the fundamental rights clause of the Constitution in relation to property; reversed a Court of Appeal decision upholding the contractual rights of workers in the sugar industry; and interfered with free collective bargaining by making an agreement entered into in 1977 between the Guyana Trades Union Congress (GTUC) and the Government, and any other such agreement entered into in future, binding on all public sector employees. 826. In relation to the last of these matters, the complainant states that there can be no genuine or proper collective bargaining between the Government and the GTUC because two Ministers and a Parliamentary Secretary are members of the GTUC executive and are privy to all decisions taken at executive level; as the ministers are said to accept the doctrine of paramountcy of the party and are bound by oath to Cabinet secrecy, it is the Government that benefits from their presence on the GTUC executive. 827. Concerning the action taken against trade union members and officials in the mining industry, the complainant alleges that 1,721 workers at Guyana Mining Enterprises Limited were dismissed under the guise of retrenchment in July 1983, following a general strike in the bauxite industry which had resulted from the imposition by the employers of a three-day week in retaliation for a one-day-per-week strike decided in May 1983 by the Guyana Mine Workers Union (GMWU) and the Guyana Bauxite Supervisors Union (GBSU). Among those affected were a number of trade union officials, including the President of the GBSU, the Treasurer of the GMWU and all the shop stewards. Efforts by the GTUC to secure reinstatement of the workers had been unsuccessful. 828. Actions relating to workers employed at Seals and Packaging Industry Limited (in which a majority of the shares are said to be owned by the Government) which are the subject of the complaint are alleged to have arisen after workers in the industry had requested the complainant to act as their sole bargaining agent in February 1983; its application was referred by the company to the Ministry of Labour for advice following a request for bargaining rights on behalf of the workers by the Guyana Labour Union (GLU), which, the complainant alleges, is government-backed. The complainant states that the Ministry sought the guidance of the GTUC which it alleges was supporting and had been controlled by the Government. It further alleges that pressure was brought to bear on workers to join the GLU, which it claims they refused to do (it attaches a petition signed by 27 workers and addressed to the GTUC, inter alia supporting the GTUC's advice that a poll be held and pledging their support to the complainant). It states that shortly thereafter two of its militant members were retrenched although they were skilled workers, and casual workers were retained; that this gave rise to a protest strike by the entire workforce, which was only called off after two days, following an agreement between the complainant's General Secretary and the Chief Labour Officer. On reporting for duty following the ending of the strike, all workers were, according to the complainant, refused entry and served with letters stating that, as a result of the strike action, management had concluded that they had of their own volition and by design terminated their employment. The complainant states that subsequently it advised workers to accept offers of re-employment despite the company's indication to some workers that this would happen only if they stopped union agitation. Seven of the workers were not re-employed. The complainant concludes this aspect of its allegations by stating that the workers at the company are still insisting that it be recognised as sole bargaining agent, but that the Government will not allow an independent union to make inroads into the public sector and is guilty of fostering "company unionism". 829. Other allegations of anti-union discrimination by the complainants concern: (a) the dismissal, by the General Secretary of the General Workers Union of one of the union's field officers and the Treasurer, both of whom are said to have applied to the courts for redress, though this process is said to be tardy, and the retrenchment of another field officer following his reversion to service with the Guyana Rice Board. These dismissals are said to have taken place because the individuals involved voted in GTUC elections against the wishes of the ruling party; (b) under the same heading, the complainant refers to the dismissal of two employees of the Guyana Co-operative Mortgage Finance Bank. B. The Government's reply 830. In its communication of 31 July the Government denies the complainant's general allegation concerning the flouting of international labour standards; it points out that no evidence is adduced in this regard and that, although it also denies that there have been departures from good industrial relations, it is of the view that the complainants have been unable to show that alleged defects of this kind have been deliberately occasioned by the Government or its policies. It also denies that freedom of association and other trade union rights are under assault by the Government as alleged. 831. It states that the two Ministers and the Parliamentary Secretary who are on the executive of the GTUC were elected to that body prior to their appointment to government office, and that they continue to serve the TUC, having been re-elected to their positions; that there is nothing in the Constitution of the GTUC to disqualify them from holding such positions while holding ministerial ofice; and it cites precedents from other countries in the West Indies where public personalities have occupied ministerial posts at the same time as high trade union office. 832. On the question of the use of intimidation to prevent the recognition of freely chosen trade unions, the Government states that the party in power does not use intimidatory tactics, and that recognition issues are processed in accordance with accepted procedures. Where such issues involve trade unions which are members of the GTUC they are submitted to that body, which is independent and whose deliberations the party in office cannot and does not direct, and which thereafter submits its advice to the Ministry of Manpower and Co-operatives for further action. 833. According to the Government the right to collective bargaining is not being attacked. It points out in this regard that it has recently ratified Convention No. 154 on the Right to Collective Bargaining and that it fully respects is obligations thereunder. It further points out that the complainant unions are part of a GTUC delegation which is presently negotiating wage increases in the public sector, and that all the unions in that sector form part of the GTUC's team which negotiates with the Government. 834. As regards the allegations relating to the mining industry, an annexure attached to the Government's communication states that, although Guyana Mining Enterprises Limited is wholly owned by the Government, it would be wrong to assume that any breach by the company of accepted labour relations practices indicates a breach by the Government of its obligations under international labour instruments. It adds that the complainants' allegations are wholly lacking in merit; that the company's initial reduction of the working week during the course of the one-day-per-week stoppage was not retaliation but the result of economic considerations, i.e. considerable losses which were being sustained since 1982 and which would in any event have led to a reduction in the workforce; that the sudden and unstructured reduction in the effective strengh of the workforce by that stoppage made matters worse so that the only alternative to shutting down operations completely was a reduction in the working week; and that the general strike in the industry had further exacerbated the situation. The ending of the strike had been preceded by an agreement that the company and the union would meet for the purpose of recommending measures for the reduction in operating costs and ensuring the continued viability of the enterprise; such meetings had taken place, but no agreement had been reached and as a result the company had been obliged to proceed with an exercise involving limited retrenchment, details of which had been disclosed at a meeting with the GTUC and the unions, at which the Minister of Manpower and Co-operatives had presided, and which are outlined in the Government's communication. These relate, inter alia, to the fact that 1,428 (not 1,721 as alleged) employees had been retrenched, with a further 330 being reinstated later; and to the categories of workers to be involved (according to age or length of service) as well as the procedures to be followed by managers. The Government acknowledges that the entire branch executive of the union was retrenched at one plant, along with other workers, and all union officers but two had been retrenched at another plant, but it states that in the first of these instances the plant had not operated as a production unit for more than a year, and as regards the second the number by which the workforce was reduced was decided without references to names or union positions held. It confirms that a number of union officials, including some but not all shop stewards, were among those who have been retrenched, but strongly denies any victimisation and states that the cause was economic necessity and the process took full account of the applicable criteria. It points out furthermore that a number of the retrenched union officials were among those who were reinstated and that this in its view corroborates the absence of victimisation. 835. As regards the recognition aspects of the events at Seals and Packaging Industry Limited, the Government refers to the fact that two unions had requested sole bargaining rights, and that the company had asked for the Ministry's assistance, following which it had sought the advice of the GTUC in keeping with recognised and accepted industrial relations practice. It had subsequently received a copy of a letter from 27 workers urging the GTUC to advise the Ministry to conduct a poll in order to resolve the dispute. Up to the present, the GTUC had not tendered advice though it had informed the Ministry in August 1983 that one of its committees had been asked to expedite its report on the union recognition dispute. The Government adds that in the meantime the workers had decided against being represented by either of the unions seeking sole bargaining rights and were represented by a staff association; there had been no agitation for recognition of either union. 836. As regards dismissal of workers at Seals and Packaging Industry Limited, the Government states that it was informed by the company that there had been an unofficial strike involving 22 casual workers, over a period of approximately one month in June and July 1983. Three of those who had been on strike returned to work at its conclusion and, although 19 had been given notices of termination, all but seven (who had not responded to the company's invitation to return) were re-employed without break of service. The dismissal of the seven was, the Government states, totally unrelated to their trade union activities. The Government further states that the retrenchment of the two union activists referred to by the complainant came about because the special project on which they had been working came to an end and they had consequently become redundant. 837. As regards the other allegations of dismissals, the Government states that it was not requested to mediate in the case of the two officials of the General Workers Union (GWU) who were dismissed and have sought redress through the courts, although it regards the complainant's remark about the tardiness of the process as unfair and irresponsible, especially in view of the reference in another part of the complaint to the role of the courts in upholding claims by workers. As to the GWU official who had been retrenched after re-employment by the Guyana Rice Board, this person had previously had no guaranteed post but had been employed seasonally; he had been made redundant after the plant at which he had been employed had been to a large extent destroyed by fire, which resulted in the laying off of other employees there as well. The Government denies any impropriety on its part as regards the dismissal of the two employees of the Guyana Co-operative Mortgage Finance Bank, in respect of whom no representations had been made by the staff association of the bank and whom the Government was advised had been dismissed, after warnings, for late arrivals at work. 838. Finally, as regards the Labour Amendment Act, the Government points out that the matter is sub judice as the validity and constitutionality of the entire Act are being challenged following the hearing of an extremely complicated case in respect of which judgement had not yet been rendered; it does, however, deny that the Act in any way violates the Constitution or accepted labour relations practices and requirements. C. The conclusions of the Committee 839. The Committee observes that there appear to be four principal aspects to the complainant's allegations. These are: (a) those relating to the dual governmental and trade union functions of members of the GTUC executive; (b) those relating to the deliberate policy which the Government is following and which are said to amount to an assault on trade union rights and a flouting of fundamental norms and practices of international labour practice; (c) specified action in relation to industrial disputes or concerning trade union activists which, it is claimed, involves the violation of trade union rights; and (d) the effects of the Labour Amendment Act on collective bargaining and collective agreements. 840. With regard to the last of these, the Committee notes that the matter is sub judice , as the result of a challenge to the validity and the constitutionality of the Labour Amendment Act before the courts by three workers through their union (the principal complainant in this case). It requests the Government to supply it with a copy of the judgement of the court as soon as this is available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information. At the same time, it draws the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations. 841. As regards the dual governmental and trade union functions of members of the GTUC executive, the Committee asks the complainants to supply details on this allegation and, in particular, to indicate what consequences this has on the exercise of trade union rights. 842. As regards the allegations relating to the Government's deliberate policy of violations of trade union rights, their generalised character and range lead the Committee to the conclusion that, in the absence of more detailed information relating the alleged policy to a particular course of conduct involving the infringement of rights of freedom of association, this aspect of the case does not call for further examination. 843. Concerning the specific allegations of dismissals of workers and trade union leaders, the Committee observes that the information supplied by the complainants and by the Government are contradictory. It is consequently of the view that it is not in a position to arrive at conclusions on this aspect of the case. 844. On the subject of the recognition of sole bargaining rights at Seals and Packaging Industry Limited, the Committee notes that the Government chose to refer the matter for advice to the Guyana Trades Union Congress, but that such advice has not been forthcoming despite the lapse of more than two years since the question was first raised; and the information supplied by the Government to the effect that, in the meantime, the workers have decided against being represented by a sole bargaining agent and are represented by a staff association. The Committee recalls its earlier decisions that it is not necessarily incompatible with Convention No. 87 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent, but that in such cases there is a need to provide certain safeguards, which include (a) certification by an independent body, and (b) the choice of the representative organisation by a majority vote of the employees in the unit concerned. [See, for example, the 121st Report of the Committee, Case No. 624 (UK/British Honduras), para. 56; 187th Report, Case No. 796 (Bahamas), para. 173; 222nd Report, Case No. 1163 (Cyprus), para. 313.] The Committee is of the view that these principles are appropriate to the situation and expresses the hope that the Government will find it possible to give effect to them. The Committee's recommendations 845. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) The Committee requests the Government to supply it with a copy of the judgement of the court concerning the validity and the constitutionality of the Labour Amendment Act as soon as this becomes available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information. (b) The Committee asks the complainant organisations to supply details on their allegation concerning the dual governmental and trade union functions of members of the GTUC executive and, in particular, to indicate what consequences this has on the exercise of trade union rights. (c) The Committee draws aspects of the case relating to the Labour Amendment Act to the attention of the Committee of Experts on the Application of Conventions and Recommendations. (d) The Committee expresses the hope that, in relation to the recognition of sole bargaining rights, the Government will find it possible to give effect to the principle that it is not necessarily incompatible with Convention No. 87 to provide for certification of the most representative union in a given bargaining unit as the exclusive bargaining agent, but that in such cases there is a need to provide for certain safeguards which include (a) certification by an independent body and (b) the choice of the representative organisation by a majority vote of the employees in the unit concerned. Case No. 1333 COMPLAINT PRESENTED BY THE WORLD FEDERATION OF TRADE UNIONS AGAINST THE GOVERNMENT OF JORDAN 846. The World Federation of Trade Unions (WFTU) submitted a complaint of violations of trade union rights against the Government of Jordan on 30 April 1985. The Government sent its observations in a communication dated 28 May 1985. 847. Jordan has not ratified the Freedom of Association and the Right to Organise Convention, 1948 (No. 87); it has ratified the Protection of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainant's allegations 848. In its communication of 30 April 1985, the WFTU states that, on 14 February 1985, government forces arrested Mohammad Hussein Qasem, President of the General Federation of Commercial, Shops and Professional Trades Unions. It also alleges that, on 13 April 1984, government forces arrested Abdul Razzaq Said Issa, the General-Secretary of the Trade Union of Workers in Banks and Insurance, for trade union activities. According to the WFTU, the case of Mr. Said Issa has not been referred to the courts. 849. The complainant states that these acts constitute grave violations of trade union rights as enshrined in Conventions Nos. 87 and 98 and requests action towards their unconditional release and full respect of fundamental trade union rights in Jordan. B. The Government's reply 850. In its communication of 28 May 1985, the Government states that Mr. Mohammad Hussein Qasem ceased to be a trade union representative on 12 January 1984 both as regards the Trade Union Committee of Workers in Furniture and Household Appliances Industries and the Board of the General Union of Workers in Commercial, Personal and Private Handicraft Shops to which he had previously been affiliated. The Government points out that the General Union of Workers in Commercial, Personal and Private Handicraft Shops is composed of three trade union committees (the Trade Union Committee of Workers in Furniture and Household Appliances Industries, the Trade Union Committee of Workers in Footwear Industries and Leather Industries, and the Trade Union Committee of Workers in Sewing Industries) all of which nominate three members to the nine-man board of the general union. According to the Government, on 19 November 1983 the Ministry of Labour and Social Development received a memorandum from the Trade Union Committee of Workers in Furniture and Household Appliances Industries stating that the number of candidates for membership of that trade union committee was nine and that they had been elected without a vote. Mr. Qasem, not having presented himself as a candidate, was consequently not a member of that committee. Moreover, on 12 January 1984, the Ministry received a memorandum from the same trade union committee stating that Mr. Qasem was excluded from the board of the union for various defamatory acts and the circulation of false rumours. The Government therefore concludes that, since the arrest of Mr. Qasem took place in February 1985, it could not have been related to his trade union activities in which he ceased to play any role sometime before. 851. According to the Government, information from competent security sources states that the arrest of Mr. Qasem was due to his activities as a leader of the underground Popular Front/Jordan Branch which, according to its rules was aimed at overthrowing the Jordanian regime by use of force. Mr. Qasem was brought before the competent tribunal, given the possibility of defending himself, found guilty and sentenced to five years' imprisonment. The Government states that the Ministry of Labour and Social Development is no longer responsible for the follow-up of his case. 852. As regards Mr. Said Issa, the Government states that he is a member of the board of the Union of Workers in Banks, Insurance Companies and Accounting to which he was elected in 1983. On 18 April 1985, the Ministry of Labour and Social Development was informed by that union of his arrest on 14 April, without mentioning the reasons for his arrest. According to authorised security sources, Mr. Said Issa was arrested for being a member of the underground Popular Front/Jordan Branch. He was brought before the competent tribunal, given the possibility of defending himself, found guilty and sentenced to five years' imprisonment. The Ministry of Labour and Social Development is no longer responsible for following up his case. C. The Committee's conclusions 853. The Committee notes that this case concerns the arrest - in April 1984 and February 1985 - of two trade union leaders and their subsequent sentencing to five years' imprisonment. It notes, in particular, that the reasons given for the arrests and imprisonment are directly contradictory: the complainant organisation alleges that they were due to the trade union activities of the persons concerned, and the Government states that they were due to their membership of an underground organisation aimed at overthrowing the Government by force. Although the complainant itself gives no further details concerning the link between these persons' trade union activities and their arrests, the Government also does not give sufficient detail concerning the charges brought against them and does not supply a copy of the judgement handed down by the courts involved. 854. Given the conflicting nature of the complainant's allegation and the Government's reply, and while regretting the absence of more detailed information, the Committee would recall in general that in cases such as this involving the arrest, detention and sentencing of trade union officials, it has always taken the view that individuals have the right to be presumed innocent until found guilty. Moreover, it has considered that it is incumbent upon the Government to show that the measures involved were no way occasioned by the trade union activities of the individuals concerned [see, for example, 112th Report, Case No. 569 (Chad), para. 185 and 234th Report, Case No. 1246 (Bangladesh), para. 71]. 855. The Committee further notes that the Government denies that one of the persons mentioned by the complainant organisation - Mr. Qasem - held trade union office at the time of his arrest in February 1985. The Committee would recall in this connection that protection against anti-union discrimination applies equally to trade union members and former trade union officials as to current trade union leaders. Nevertheless, in accordance with its normal practice in cases where complainants allege that trade union leaders or workers have been arrested for trade union activities and the government's reply amounts to general denials of the allegation or is simply to the effect that the arrests were for subversive activities, for reasons of internal security or for common law crimes, the Committee requests the Government to supply further and as precise information as possible concerning the arrests, the legal proceedings that took place and the court judgement which resulted in sentences of five years' imprisonment for both Mr. Qasem and Mr. Said Issa. [See, for example, 93rd Report, Cases Nos. 409 and 457 (Bolivia), para. 230.] Once in possession of this information, the Committee will be in a position to reach a decision in this case. The Committee's recommendations 856. In these circumstances the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions: (a) the Committee notes the contradictory nature of the complainant's allegations and the Government's reply concerning the arrest of two trade union leaders in April 1984 and February 1985 respectively; it recalls that it is incumbent upon the Government to show that the measures taken were in no way occasioned by the trade union activities of the individuals concerned; (b) given the lack of information concerning the reasons for the arrest and subsequent sentencing to five years' imprisonment of the trade union leaders concerned, the Committee requests the Government to submit further and as precise information as possible on the incidents which led to the arrests and a copy of the judgement handed down in the subsequent proceedings, so as to enable it to reach a decision in this case. Geneva, 7 November 1985. Roberto Ago, Chairman. 242nd REPORT INTRODUCTION 1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 1, 2, 4 and 7 November 1985 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body. 2. The Committee had before it various complaints of infringements of trade union rights in Turkey presented by a number of trade union organisations (Cases Nos. 997, 999 and 1029), as well as a representation concerning the non-observance by Turkey of the Right of Association (Agriculture) Convention, 1921 (No. 11), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), made by the General Confederation of Trade Unions of Norway under article 24 of the Constitution of the ILO. 3. At its 230th Session (May-June 1985) the Governing Body adopted the interim conclusions on Cases Nos. 997, 999 and 1029 submitted to it by the Committee in its 240th Report. 4. Since then, the Government sent its observations in four communications dated 19 September and 5, 18 and 23 October 1985. Cases Nos. 997, 999 and 1029 COMPLAINTS PRESENTED BY THE WORLD CONFEDERATION OF LABOUR, THE WORLD FEDERATION OF TRADE UNIONS, THE INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS AND SEVERAL OTHER TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF TURKEY REPRESENTATION SUBMITTED BY THE GENERAL CONFEDERATION OF NORWEGIAN TRADE UNIONS UNDER ARTICLE 24 OF THE CONSTITUTION, CONCERNING NON-OBSERVANCE OF THE RIGHT OF ASSOCIATION (AGRICULTURE) CONVENTION, 1921 (NO. 11), AND THE RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 (NO. 98) BY TURKEY 5. The Committee has been examining these cases since February 1981 and has submitted 12 interim reports thereon to the Governing See page 1, footnote 1. Body, the last one being submitted in May-June 1985 [see 240th Report of the Committee, approved by the Governing Body at its 230th Session, May-June l985]. 6. Further allegations were contained in a communication dated 26 June 1985 from the World Federation of Trade Unions and 29 July 1985 from the Automotive Production, Assembly, Iron, Machinery and Metal Goods Workers' Union of Turkey (Otomobil-Is). 7. Further information was received from the Government in communications dated 19 September 5, 18 and 23 October 1985. 8. Turkey has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. Previous examination of the cases 9. When the Committee last examined these cases in May 1985, it had received a communication from the Government which dealt in detail with the following matters: the martial law situation, including the lifting of the state of siege in various parts of the country, and the lifting of restrictions on the right to strike and lock-out thereunder; the trials of trade unionists, including those of the leaders of the DISK and its affiliates; the position relating to five of the DISK accused who were in custody; the question of the treatment of prisoners while in custody; a statutory prohibition (in terms of transitional section 5 of Act No. 2821) on the resumption by trade union leaders of their activities while they are on trial; the conservation and preservation of the assets of the trade union organisations, including DISK, which had been suspended; opportunities for re-employment of trade unionists who had been detained; and matters concerning the legislation on trade unions, collective bargaining, strikes and lock-outs (Acts Nos. 2821 and 2822). 10. The Committee also had before it further information communicated by the World Federation of Trade Unions concerning the number of persons on trial and facing a possible death sentence, as well as two new trials which were alleged to have been instituted in January 1985 involving officials of the Progressive Metalworkers' Union (Dev-Mad-Sen) and the Movie Industry Employees' Union (Sine-Sen). 11. In these circumstances, the Committee made the following recommendations to the Governing Body: (a) The Committee expresses its appreciation for the way in which the Government of Turkey has provided detailed observations on the matters raised in the previous report on these cases, as well as for the co-operation which the Government has continued to exhibit in response to the concerns of the Committee. (b) The Committee notes that martial law is still in force in at least one-third of the provinces of Turkey (in the form of either a state of siege or a state of emergency). Recalling the principle that the existence of martial law is incompatible with the exercise of trade union rights, the Committee hopes that further developments will take place without the limitations arising from martial law. The Committee, accordingly, trusts that martial law will soon be lifted in those provinces where it is still in force. (c) As regards the allegations received concerning the commencement of two new trials in January 1985 involving leaders of the Progressive Metalworkers' Union and the Movie Industry Employees' Union, the Committee requests the Government to supply information concerning this matter. (d) Regarding the trial of the leaders of the DISK and its affiliates, the Committee notes with concern that these proceedings are now in their fourth year and feels obliged to observe that so long a period might in itself give rise to suffering on the part of the accused persons and their families, whatever the outcome of the proceedings. (e) The Committee expresses the hope that every effort will be made to bring the trials of the DISK leaders to a speedy end and that the Government will provide more specific information concerning the five accused in the DISK trial who are still in detention. (f) The Committee expresses the hope that the Government will keep it informed of the outcome of the appointment of a multi-party commission by the Turkish National Assembly to investigate prison conditions and that it will provide it with the text of any report produced by the commission. (g) The Committee reiterates its previous recommendation strongly urging the Government to repeal transitional section 5 of Act No. 2821 on trade unions, which has had the effect of prohibiting the DISK leaders from resuming or participating in trade union activities and has thus deprived them over a long period not only of their rights as trade union leaders but also of their means of livelihood. (h) The Committee notes that the information concerning the assets of the DISK and its affiliates does not specify the date(s) in respect of which this information is provided, and accordingly requests the Government to let it have the relevant figures for each of the years since the assets were placed under trusteeship. The Committee again expresses the wish that steps will be taken to restore the assets of the DISK and its affiliates to the organisations as soon as their suspension has been lifted. (i) The Committee requests the Government to keep it informed of developments regarding the introduction of amendments to Act No. 2821 on trade unions and Act No. 2822 on collective bargaining, strikes and lock-outs, particularly in so far as these relate to the determination of the most representative union for collective bargaining purposes and any limitations which might be placed on the right of workers' organisations to participate freely in the process of collective bargaining; it trusts that the introduction of such measures will result in a greater degree of conformity with the principles of freedom of association and free collective bargaining, and that any new legislation will take full account of the comments previously made by the Committee and by the Committee of Experts on the Application of Conventions and Recommendations; it again draws this aspect of the cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations. B. Additional allegations 12. In its communication of 26 June 1985, the WFTU alleges (1) that a statement by the Prime Minister of Turkey contained in an interview published on 8-9 June 1985 in the International Herald Tribune violated decisions concerning freedom of association as well as section 138 of the Turkish Constitution in claiming that the DISK, while posing as a social-democrat organisation, had been financed by communists, thus influencing the proceedings at present before the courts; and (2) the enactment of new legislation on 16 June conferring additional repressive powers on the police which affect trade union rights and democratic freedoms by giving power to the administrative authorities and the police to suspend and/or close down trade union offices. 13. In a communication dated 29 July 1985, Otomobil-Is (the Automotive Production, Assembly, Iron, Steel, Machinery and Metal Goods Workers' Union of Turkey) alleges the infringement of the exercise of trade union rights through the refusal by the Ministry of Labour and Social Security to accord it a certificate of competence for the purposes of collective bargaining in terms of Act No. 2822 on collective bargaining, strikes and lock-outs, in particular through a Decree of 9 July 1985 extending the operation of a collective agreement at the Eregli Iron and Steel Factory (ERDEMIR). 14. Otomobil-Is states that official statistics published as recently as 17 July 1985 show that it is the second largest union in the metal products industry and that it is one of five independent unions representing at least 10 per cent of insured workers in a given branch of activity; that the requirement concerning representation of at least 10 per cent of the workers in a given branch of activity is contrary to free trade unionism, is anti-democratic and is to the disadvantage of trade unions which, like it, lack good relations with those exercising political power; that it represents a majority of the workers of ERDEMIR; and that the Extension Decree reflects this hostile attitude on the part of the Government while also leaving thousands of workers at ERDEMIR who are its members unorganised. C. The Government's replies 15. In its communication of 19 September 1985, the Government, after again expressing its satisfaction that the Committee had recognised the spirit of co-operation it had displayed, provided further information relating to the states of siege. It pointed out that these could be proclaimed only for a period not exceeding six months, and that decisions relating to their proclamation, prolongation, shortening or lifting were required to be submitted to the Parliament for approval. It also stated that the state of siege had been lifted in a further six provinces (including Ankara and Izmir) on 19 July 1985, so that it applied now to only 17 provinces of the total of 67 in Turkey. The reply went on to state again that it was the policy of the Government to proceed progressively with the lifting of states of siege to the extent that circumstances permit and, adding once more information to the effect that the requirement of permission for strikes and lock-outs had been lifted since November 1984. 16. As regards the allegations relating to further trials said to have been commenced in January 1985, the Government stated that the trial of the Movie Industry Employees' Union (Sine-Sen) had been instituted at the end of 1983 by the martial law prosecutor of Istanbul on a charge of breaching section 141 of the Penal Code by conducting illegal activities with the object of establishing the hegemony of one social class over another, under cover of the trade union. 17. On the subject of the DISK trial(s), the Government indicated that these were at the stage where evidence was being examined and would shortly be entering the phase during which supplementary information would be considered; and that, as previously stated, there was no way in which a trial could be prolonged once the set procedures had been completed. 18. On the subject of the five trade unionists still in detention, the Government provided the following information: Mustafa Aktulgali and Ozcan Kesgeç (of the Turkish Workers' Party) had been sentenced to eight years' imprisonment for contravention of article 141 of the Turkish Penal Code; Mustafa Orhan was still on trial for contravening various articles of the Penal Code as a member of an illegal organisation (THKP-C/Kurtulus); Mustafa Karadayi and Kamil Deriner's files had been referred to the Assize Court at Ankara on 21 May 1985, after the martial law court had been found incompetent to deal with the charge of smuggling which they faced. 19. The parliamentary committee whose establishment, for the purpose of inquiring into conditions in civil and military prisons, had been notified to the Committee by the Government previously, has, the Government states, recently decided to extend its programme of visits to include police stations and places of detention. The Committee's request for a copy of the report of the parliamentary committee had been passed on to the President of the Council, and the outcome would be communicated to the Committee in due course. 20. After restating information to the effect that no trade unionist in Turkey had been put on trial for legal trade union activities and that the Constitution forbids any interference with the course of justice, the Government goes on to indicate the origin and basis for transitional section 5 of Act No. 2821 as being articles 13 and 52 of the Constitution; and states that should the accused persons be acquitted they may resume their trade union activities. It refers to the fact that the MISK leaders who were also accused of crimes against the State and who were acquitted thereof today enjoy all the trade union rights recognised under the Turkish Constitution and laws. 21. Concerning the assets of the DISK and its affiliates, the Government provides figures relating to the liquid and other assets of each of 41 trade union organisations listed in its communication, which together total approximately TL7. 75 billion (or approximately US$15 million). It states that if the judgement of the courts permit the re-establishment of the trade union on trial, the assets will be returned to them by the curators who at present have the responsibility for conserving and preserving them. 22. In its reply of 23 October 1985, the Government states that the passages from the Prime Minister's interview in the International Herald Tribune cited by the WFTU deliberately omitted a sentence at the end which read: "But this is for the courts to decide", and again states that courts and judges cannot receive instructions from any organ, office, agency or individual. 23. After describing the objects of the laws on industrial relations and collective bargaining as well as reaffirming its attachment to international labour standards, the reply of the Government also indicates that there is regular co-operation between the Government and employers' and workers' organisations and that the continuing work on the formulation of amendments to Acts Nos. 2821 and 2822 takes account of the views of these organisations and of the universities. 24. Concerning the allegation by the WFTU regarding the introduction of new powers for the police in terms of legislation enacted in June 1985, the Government, in its communication of 23 October, states that the pre-existing law (Act No. 2559, dating from 1934) was inadequate to deal with developments over the last 50 years. It confirms that the new law, Act No. 3233 of 16 June 1985, refers in section 8E to the premises of trade unions as among those which may be closed down or withdrawn from use after more than one written warning by the police where they are not being operated in accordance with their stated purpose. It adds that the new law retains safeguards which were in the previous legislation (the requirement that the police should act on the basis of evidence; that they should act on the instructions of the highest local administrative authority, i.e. governors and district governors; and that, if the reasons for the police action could give rise to legal proceedings, the judicial authorities must be informed immediately), while introducing the following additional elements: reducing the time for which premises can be closed down in circumstances involving legal proceedings from an unlimited period to a maximum of three months; guaranteeing the right of appeal to the Council of State at any stage of administrative and judicial proceedings related to action by the police in terms of the provision. 25. In its communication of 18 October 1985 relating to the allegations of Otomobil-Is, the Government explains that the collective agreement was extended by decree in order not to deprive the workers at ERDEMIR of its benefits and to avoid the unfortunate effects which this might have on productivity in an enterprise of considerable importance within the national economy. This had become necessary because it had become clear that none of the three unions which are engaged in activities at ERDEMIR (i.e., Celik-Is, Otomobil-Is and Turk Metal) could obtain the required majority at the place of work, since, in terms of sections 22 and 25 of Act No. 2821 on trade unions, new members of one union could only be acquired as a result of resignations from either of the other two; and that even if this were to occur, the process would take considerable time. The Government also indicates that at the time of their respective applications for certificates of competence, both Celik-Is and Otomobil-Is were adjudged to have less than the required number of members at the workplace (1,053 out of 7,693 in the case of the former, and 1,687 out of 7,888 for the latter); and that these judgements had been confirmed on appeal by the Labour Court of Zongulak in both instances and, so far as Otomobil-Is is concerned, also by the Court of Cassation. D. The conclusions of the Committee 26. The Committee notes the detailed information supplied by the Government in response to the recommendations it made in its previous report. It feels bound, however, to observe that although developments are to be noted in regard to some of the matters on which it has made recommendations, it is a matter of regret that it is still necessary to address a significant number of the issues with which the cases have been concerned over a period of nearly five years. The process of arriving at conclusions on some of the outstanding problems might be aided if additional new information were available, especially as regards a number of specific matters to which attention has been directed. 27. The Committee notes with interest that the Government has taken further steps to lift the state of siege in a number of provinces. It notes, however, that martial law still operates in this form in 17 of Turkey's 67 provinces. It once again expresses the firm hope that steps will be taken to remove martial law completely since its continued existence is, in the opinion of the Committee, incompatible with the exercise of trade union rights. 28. The Committee is also of the view that the continuation of the trial of the leaders of the DISK and its affiliates remains a matter for disquiet, and it expresses the hope that every effort will be made to bring it to a speedy end. 29. As regards those trade unionists who are in detention, the Committee notes that the trial of two of these has been referred from a military to a civil court, and requests the Government to keep it informed of developments in these proceedings so that it may satisfy itself that the offences with which they are charged do not relate to the trade union activities of these persons. Similarly, it requests the Government to supply it with copies of the judgements in respect of the other three persons who have received sentences of imprisonment for the purpose of arriving at a conclusion on their cases in full possession of all relevant information. 30. The Committee takes note of the Government's statement that no new trial was instituted in January 1985 in respect of leaders of the Movie Industry Employees' Union, but that this was in fact commenced at the end of 1983. It trusts that it will be kept informed of developments in this respect, as in the case of other trials involving trade unionists and trade union leaders. At the same time the Committee notes that no reference was made in the reply of the Government to allegations concerning the trial of 16 leaders of the Progressive Metalworkers' Union (Dev-Maden-Is), and requests the Government to supply it with information on this matter. 31. The Committee notes with interest that the parliamentary committee of inquiry into conditions in civil and military prisons is extending its investigations to cover police stations and other places of detention under the supervision of the police; it expresses the hope that the Government will make available to it a copy of the report presented on these and other aspects of allegations relating to the torture and ill-treatment of prisoners. 32. The Committee remains of the view that the prohibition contained in transitional section 5 of Act No. 2821 involves an infringement of freedom of association by depriving trade unionists and trade union leaders of the right to participate in trade union activities while they are on trial and in the absence of conviction of any offence. It expresses the hope that the necessary steps will be aken to repeal the provision and to ensure that the trade unionists and trade union leaders involved will be able to enjoy all the rights to which they are entitled in accordance with the principles of freedom of association. 33. The Committee notes the information provided by the Government concerning the assets of the DISK and its affiliates. In this regard it must point out that, although this contains more detail as to the position of individual unions, it still does not indicate a basis on which an assessment can be made as to the extent to which the assets have been preserved, as no comparative figures are given for the dates on which possession was taken by the curators or in respect of subsequent years. Compared with information made available to the Committee by the Government at the time of its last report, the totals of the sums involved as referred to in the information provided in its communication of 19 September 1985 indicate that there may have been a substantial diminution in the value of the assets. The Committee must, in the circumstances, urge the Government to supply it with complete and comprehensive information on the position so that it may reach a conclusion on this aspect of the case in full possession of all the relevant facts. 34. The Committee takes note of the allegation concerning statements by the Prime Minister which might influence the proceedings of the court and of the information provided by the Government to the effect that this was qualified by specific mention of the fact that it was for the courts to decide on the matters referred to, as well as its affirmation that courts and judges may not receive orders and instructions from any organ, office, agency or individual. In the circumstances, it is of the view that this question does not require further examination. 35. On the subject of the allegations concerning the powers accorded to the police in terms of Act No. 3233, the Committee takes note of the information supplied by the Government. At the same time it notes that no specific allegations have been made concerning the use of these powers against trade unions or trade union premises. The Committee nevertheless expresses the hope that they will not be so used or otherwise employed in a manner which would involve an infringement of the principles of freedom of association. 36. The Committee takes note of the Government's explanation of the reasons for the refusal of a certificate of competence to Otomobil-Is in terms of Act No. 2822 on collective bargaining, strikes and lock-outs. It also notes, however, that the legislative provisions restricting recognition to unions which have a minimum of 50 per cent of workers in a bargaining unit have been the subject of criticism by the Committee of Experts on the Application of Conventions and Recommendations, which pointed out that if there is no union covering more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in a particular unit, at least on behalf of their own members. The Committee therefore once again draws the legislative aspect of the case to the attention of the Committee of Experts. 37. The Committee notes from the reply of the Government that the process of formulating amendments to Acts Nos. 2821 and 2822 on industrial relations and collective bargaining is still continuing and trusts that in this regard account will be taken of the previous comments made by the Committee on these matters. It requests the Government to keep it informed of developments in this regard, and draws the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations. The Committee's recommendations 38. The Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions: (a) The Committee notes the information supplied by the Government in response to its previous recommendations; it expresses regret, however, that it is still necessary to address a significant number of the issues with which the cases have been concerned over a period of nearly five years. (b) The Comittee notes with interest that the Government has taken further measures to lift the state of siege in a number of provinces and expresses the firm hope that steps will be taken to remove martial law completely since its continued existence is, in its opinion, incompatible with the exercise of trade union rights. (c) The Committee is also of the view that the continuation of the trial of the leaders of the DISK and its affiliates remains a matter for disquiet and expresses the hope that every effort will be made to bring it to a speedy end. (d) The Committee requests the Government to keep it informed of developments concerning the proceedings against two of the trade union leaders under detention whose trial has been transferred from a military to a civil court so that it may be satisfied that the offences with which they are charged do not relate to the trade union activities of those persons. (e) The Committee also requests the Government to supply it with copies of the judgements in respect of the other three trade unionists who have been sentenced to periods of imprisonment, for the purpose of arriving at a conclusion on their cases in full possession of all relevant information. (f) The Committee requests the Government to supply it with information relating to the trial of 16 officials of the Progressive Metalworkers' Union (Dev-Maden-Is). (g) The Committee requests the Government to make available to it a copy of the report presented by the parliamentary committee of inquiry relating to conditions in civil and military prisons and other aspects of allegations relating to the torture and ill-treatment of prisoners. (h) The Committee urges the Government to supply it with complete and comprehensive information relating to the assets of the DISK and its affiliates, and in particular repeats its request that the relevant figures be made available in respect of each of the years since the assets were placed under trusteeship. (i) The Committee expresses the hope that the new powers accorded to the police in terms of Act No. 3233 of 16 June 1985 will not be used against trade unions or trade union premises or in any other way which would involve an infringement of the principles of freedom of association. (j) The Committee expresses the hope that the necessary steps will be taken to repeal transitional section 5 of Act No. 2821 and to ensure that the trade unionists and trade union leaders who have been deprived of the right to participate in trade union activities while they are on trial and who have not been convicted of any offence are thereby afforded the rights to which they are entitled in accordance with the principles of freedom of association. (k) The Committee requests the Government to keep it informed of developments concerning the formulation of amendments to Acts Nos. 2821 and 2822 and trusts that, in this regard, account will be taken of the previous comments made by the Committee on these matters. It draws this aspect of the cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations. Geneva, 7 November 1985. Roberto Ago, Chairman. GB. 231/10/14 231st Session Geneva, 11-15 November 1985 Tenth item on the agenda TWO HUNDRED AND FORTY-SECOND REPORT OF THE COMMITTEE ON FREEDOM OF ASSOCIATION Contents Paragraphs