&htab;27.&htab;The Committee considered this case at its meeting in November 1985 when it presented an interim report that was approved by the Governing Body at its 231st Session. [See 241st Report, paragraphs 564 to 648.]

&htab;28.&htab;At its meeting in February 1986, the Committee decided to postpone consideration of this matter, as indicated in paragraph 8 of the 243rd Report as approved by the Governing Body at its 232nd Session (Geneva, February 1986), in the hope that it would receive a copy of the decree by the Council of State on the nullification appeal lodged by the National Union of Independent Trade Unions (UNSI) against the Ministerial Decree under which this organisation was refused access to the National Labour Council, as well as copies of the appeals lodged by the Federation of Postal and Telecommunications Workers which is affiliated to the UNSI.

&htab;29.&htab;In its communications of 21 August and 16 September 1986, the Government annexed copies of the three decrees issued by the Council of State concerning the appeals lodged by the Federation of Postal and Telecommunications Workers but it failed to include that concerning the appeal lodged by the UNSI.

&htab;30.&htab;Subsequently, the Independent Union of Railway Workers (SIC), also affiliated to the UNSI, lodged a complaint against the Belgian Government for breach of freedom of association through communications of November 1986 and January 1987.

&htab;31.&htab;In response to a request by the Committee that it be kept informed of the date of the pending decision by the Council of State, the Government, in a communication dated 14 January 1987, stated that procedures were long and difficult and that it was not easy to predict exactly when the decision would be handed down. At its meeting in February 1987, the Committee recalled that its jurisdiction with respect to the consideration of allegations was in no way dependent on the exhaustion of internal channels of appeal and that it, therefore, postponed the consideration of cases for a reasonable period only where a court decision was pending. The Committee recalled that the UNSI complaint had been submitted to it for the firt time on 18 June 1983 and that the appeal lodged by that organisation with the Council of State dated from 5 December 1985. It pointed out to the Government that, given the amount of time that had elapsed since the submission of the complaint and the lodging of the appeal with the Council of State, it intended to consider the substance of the matter at its next meeting (paragraph 9 of the 248th Report).

&htab;32.&htab;The Government subsequently sent a communication dated 8 May 1987.

&htab;33.&htab;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).

&htab;34.&htab;The UNSI complaint concerns essentially the refusal by the Government to grant that organisation - which claims to have national coverage, to be inter-occupational and to have a membership of some 100,000 - access to the National Labour Council and the resulting limitations placed upon it. Such limitations in the private sector are that it cannot participate in trade union elections, joint bargaining and the payment of unemployment benefits, that it cannot levy dues and that it would suffer discrimination resulting from the payment to workers in the private sector of trade union allowances which are said to be a real means of bringing pressure to bear to induce workers to join unions close to the Government. In the public sector, the limitations take the form of a ban on its participation in general negotiating committees, its checking examinations and its holding meetings and collecting trade union dues on departmental premises. Finally, there is the unilateral decision by the Ministry of Postal Affairs to exclude the Postal Workers' Trade Union - which represents workers in that sector - in favour of a liberal union which would appear not to be representative.

&htab;35.&htab;The Committee, when considering this case in November 1985, realised on examining the Government's reply that this reply took no account, as grounds for refusing the UNSI access to the National Labour Council, of the perfectly acceptable quantitative criterion whereby a minimum membership of 50,000 is required of an organisation covering all categories of workers in order that it might sit on the National Labour Council (article 3 of the Law of 5 December 1968). As a result, the Committee reached interim conclusions, couched as follows:

(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 committee 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 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 considerablenumber 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 risen 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.

&htab;36.&htab;In referring to the reasons for its refusal to allocate a seat on the National Labour Council to the UNSI, the Government admits, in its reply of 28 January 1986, that the Organic Law of 29 May 1982, whereby the National Labour Council was created, contains no condition or criterion relating to representativity. It states that the Law in question merely stipulates that the Government shall appoint the titular and substitute members of the Council, that it envisages no numerical criteria and that it thus has considerable discretionary powers in deciding which are the most representative organisations which should be invited to put up candidates to represent them on the National Labour Council.

&htab;37.&htab;The Government does explain that collective agreements reached by the National Labour Council may be rendered mandatory by Royal Order and that this, with but rare exceptions, was always what happened. Hence, such agreements have force of law (with penalties in cases of breach). These collective agreements reached by the National Labour Council (of which there are 40 to date) deal with essential aspects of social life and apply to all undertakings in the private sector. Matters as fundamental as guaranteed minimum wages, part-time work, temporary work, the indexing system, early retirement, etc., are all dealt with, in Belgium, by this method. So the National Labour Council is a sort of "social parliament".

&htab;38.&htab;It adds that the National Labour Council operates, by the rule of unanimity, that if the signature of one single organisation is missing from an agreement, that agreement cannot be rendered mandatory, and that this power of veto is utterly out of proportion with what the UNSI represents in the present state of affairs. According to the Government, in the general interest and for the sake of social peace, it is thus out of the question for the Executive to take such risks.

&htab;39.&htab;Furthermore, states the Government, the Law of 5 December 1968 on collective labour agreements and joint commissions considerably increased the importance of the National Labour Council and the scope of its functions, as article 10 of that Law stipulates that any provisions of a collective agreement reached in a joint commission and which are contrary to the terms of an agreement reached by the National Labour Council shall be considered null and void.

&htab;40.&htab;The Government goes on to explain that the reason why the legislature waived any provision providing for a certain number of members, in this case 100,000, as a condition for representation was not that it felt that the number of members was not a valid criterion for judging the representativity of an organisation, but rather because it did not want to limit the discretionary powers vested on the Government. It adds that appreciation of the representative nature of an organisation is based on the actual social situation and on the knowledge that the Government has been able to acquire from the applicant organisation in accordance with criteria that have been applied for 40 years.

&htab;41.&htab;The Government considers that in appointing to the National Labour Council delegates from the organisations that best represent workers and employers in the private sector and which have been organised inter-occupationally for a number of years, it has taken due account of criteria that are both quantitative (number of members) and qualitative (stability of the organisation, solidity of its existence and "projection" of its legislative bodies). It confirms, moreover, that the National Labour Council is empowered to deal with problems concerning workers and employers in the private sector only.

&htab;42.&htab;Referring to the quantitative criteria, the Government holds that the UNSI has a total of under 100,000 members, many of whom are employed in the public sector in which the National Labour Council has no jurisdiction. The Government explains that the public sector includes the following organisations: the Belgian National Police Federation, the General Federation of Teachers, the Financial Union and the Independent Union of Railway Workers. Hence, from a numerical point of view, the representativity of the UNSI is very questionable.

&htab;43.&htab;Referring to the qualitative criteria (stability of the organisation, solidity of existence and "projection" of legislative bodies), the Government points out that the UNSI did not come into being as an association until 9 November 1982. It considers that while a new organisation cannot be required to have existed for as long as one of the traditional trade union organisations, it must be admitted that a mere three years of existence is much too little to qualify an organisation as a stable association. A workers' organisation sitting on the National Labour Council also has to prove the solidity of its existence and activities or, in other words, that it has a solid basis. According to the Government, the answers to the questionnaire sent to the UNSI after it had filed its application, indicate that its basis is as yet fairly limited and that it cannot be compared to that of the three orgnisations which already sit on the National Labour Council. For the time being, according to the Government, this is still a nascent organisation, a core which has yet to consolidate, to take form over a number of years before it might possibly be considered a true constant in social relations. Finally, a union which claims to be representative enough to occupy a seat on the National Labour Council must also prove that its legislative bodies and work are suitably "projected". It has to maintain frequent contact with the outside world. It is very important that it publish one or more journals as proof of this "projection" because representative trade unions must inform and influence their members to ensure that they respect the agreements and decisions that have been reached in the joint bodies. Moreover, it is important that they be really representative of all the workers and that they be able, rapidly and correctly, to keep them informed (by holding press conferences, advertising intensively, etc.). But, claims the Government, a reading of the statutes of the UNSI would seem to indicate that this "projection" has not yet materialised.

&htab;44.&htab;It thus considers that the National Union of Independent Trade Unions (UNSI) does not meet the three objective and predetermined criteria (stability, solidity, "projection") which have been consistently applied since 1945 and that its refusal to recognise the UNSI as being representative is therefore impartial and not abusive.

&htab;45.&htab;It furthermore states that freedom of association is totally guaranteed in Belgium at all levels and that no restrictions are imposed on the freedom to create workers' organisations, that all organisations are both duty-bound and empowered to conclude collective agreements and to negotiate to defend the interests of their members at all levels. It explains that the objective and predetermined criteria of representativity which distinguish between different unions apply only with the arrangement established by the Law of 5 December 1968 and that this particular arrangement in fact involves the most representative workers' and employers' associations in a system of negotiating and concluding collective agreements that has both been established and is enforced by law.

&htab;46.&htab;The Government holds that Convention No. 87 requires of the State that it place no restriction on the creation and operation of trade union organisations but in no way requires that it organise collective negotiations in such a way as to ensure that all trade union organisations participate in all negotiations.

&htab;47.&htab;The system as established in the Law of 5 December 1968, so it claims, is superimposed on the facility available to all trade union organisations to negotiate at all national and sectoral levels. Hence, all trade union organisations can conclude collective agreements in a specific sector or for any given category of workers. However, such agreements have the force with which they are endowed under common law and not that derived from the Law of 5 December 1968. The Government admits that there exists a duplication of systems but it considers that Convention No. 87 continues to be respected in both the spirit and letter, since the distinction made between various trade union organisations does not in any way deprive those trade union organisations not recognised as being among the most representative of any of the essential means of defending the occupational interests of their members or of the right to organise their administration and activities and to draw up their plans of action as provided for in Convention No. 87.

&htab;48.&htab;Moreover, the Government appended to its reply a copy of the appeal lodged by UNSI with the Council of State. From this, it is apparent that this organisation is a coalition of the following trade unions:

&htab;49.&htab;In its appeal, the UNSI claims that if, according to the Minister, a distinction is to be made between the private and the public sectors, its membership comprises 51,915 members in the private sector and 34,804 in the public sector, and that examination of its statutes and those of its affiliate organisations and consideration of its correspondence with the authorities indicate not only that the figure of 50,000 members has been attained but, moreover, that the inter-occupational character of its membership is apparent. It adds that if account also be taken of the trade union status of the public services (Law of 19 December 1974), it will also be seen that this sector should also be taken into account in determining the inter-occupational nature of its representation as, in order to be able to participate in negotiation and discussion committees, an organisation has to be a member of the National Labour Council. This reference to the National Labour Council with respect to the public services establishes the link between the public and private sectors. However, given the link between the public and private sectors, it is out of the question for the National Labour Council to consider only those figures relating to the private sector. The scope of activity with respect to the number of members was extended by the Laws of 1974 and 1984 on the trade union status of the public services. In its appeal, the UNSI points out that if this were not so, it would be pointless making membership of the National Labour Council a condition of representativity in the public services or, as the Minister mistakenly claims is the case, there should be total separation between the private and public sectors.

&htab;50.&htab;Returning to its own answer to the complaint, the Government points out that with respect to the question as to whether the UNSI has been authorised to sit on specific or sectoral committees, the complainant organisation is representative of only a small proportion of the public services subject to the 1974 Law, that it has not asked for access to any particular committees and that it cannot be considered sufficiently representative to sit on provincial or local public service committees. The Government does, on the other hand, admit that the UNSI has proved its representativity in two of the 15 sectoral committees created by these services, viz. Finance and the Telegraph and Telephone Administration, and that it was allowed to file a request concerning sectoral committees for public community and regional services. The Government explains that the UNSI waived the filing of such a request in the other sectors on the grounds that "the trade union dues paid on 30 June 1983 by members in those sectors did not reach the minimum referred to in section 51(3) of the Royal Order of 28 June 1984". The Government adds that the UNSI subsequently went back on its waiver when it discovered that it would no longer, in future, be able to avail itself of the result of the examination of the conditions of representativity with respect to these 13 sectors and it asked that a count be made of its non-due-paying members as understood by law. The Government explains that the public authorities refused by pointng out that an examination of the representativity criteria would be pointless once the UNSI confirmed that, in the 13 sectors in question, it had no affiliate meeting those criteria. Moreover, according to the Government, there is no legal provision under which a count can be made of non-due-paying affiliates. It states that a request for a count, made with the intention of having a new check made, would be a breach of the 1974 Law which requires that a periodic check be effected at six-yearly intervals but does not permit the counting of the total membership of all of the trade union organisations in the public sector whether they request this or not. According to the Government, only the Representativity Supervisory Committee is empowerd to decide what is meant by "due-paying affiliate" pursuant to the 1974 Law.

&htab;51.&htab;The Government further points out that the representativity of the complainant organisation, which was established by two sectoral committees (on the basis of membership figures for June 1983), could - in the case of one of the sectors (Telegraph and Telephone Administration) - prove provisional as the Free Civil Service Union, in a letter dated 23 December 1985, requested that its representativity be reconsidered on the basis of membership figures for June 1984 pursuant to section 14(2) of the 1974 Law. The Government states that the law allows for an organisation to apply for reconsideration before the six years expire if it believes that, since its representativity was contested, more recent membership figures qualify it according to the set "due-paying-affilates" criterion.

&htab;52.&htab;As far as the Government is concerned, the complainant organisation, which has not proved its representativity in the specific committees and which has proved it in only two out of the 15 sectoral committees, should not be admitted to committees common to all of the public services and, even less so, to the national, community and regional public sevice committees or the provincial and local public service committees.

&htab;53.&htab;The Government considers wholly unfounded the oft repeated allegations made by the complainant organisation to the effect that the system established by the Law of 19 December 1974 was aimed at ensuring a monopoly for those trade union organisations that it calls "political" to the detriment of the so-called "apolitical" organisations as the complainant organisation itself was able to establish its representativity with respect to two of the sectoral committees and as it could, moreover, have done the same for all of the sectoral committees but that it had finally refrained from doing so.

&htab;54.&htab;The Government concludes that the complainant organisation has not managed to show in what way the system established by the Law of 19 December 1974 deprives it of the right to participate in the general negotiating committees referred to in section 3 of that Law given that it had not established that it was a "sufficiently representative" trade union organisation and even less so that it was "the most representative" trade union organisation. As for the right to hold meetings and collect trade union dues on departmental premises and the right to attend examinations held for staff members, the Government explains that it should be pointed out that the said trade union organisation can exercise these rights within the Telegraph and Telephone Administration sectoral committees as it has proved "sufficient" representativity to sit on such committees.

&htab;55.&htab;It recalls, moreover, that the purpose of the condition for gaining access to general negotiating committees as stipulated in section 7(3) of the Law of 19 December 1974 according to which applicant trade union organisations have to be affiliated to a trade union organisation represented on the National Labour Council, is not - as the complainant organisation would have it - to ensure a representational monopoly for trade union organisations that it calls "political". This condition is actually based on the consideration that given the breadth of the scope of the measures submitted to the general negotiating committees and the financial burdens that such measures could incur, it would be inconvenient at this level to settle matters concerning public service workers without considering the policy to be followed with respect to workers in the private undertakings over which the National Labour Council has jurisdiction. The Government adds that there is, moreover, a trend in matters of social legislation to narrow the gap between the provisions applicable to public service workers and those applicable to workers in private undertakings.

&htab;56.&htab;With respect to the request by this Committee that it be informed of the scope and extent of collective bargaining in the Finance and the Telegraph and Telephone Administration sectoral committees on which the complainant organisation has been permitted to sit, the Government provided the following explanations:

- the scope of negotiation, in general, involves a thorough exchange of views which must, by law, precede any measures relating to the subjects mentioned in section 2(1) of the Law of 19 December 1974 - viz. basic regulations concerning administrative and financial status, pension systems, relations with trade union organisations and social services, regulations governing subsequent appointment of staff officers and the duration and organisation of work - and covered by the Royal Order of 29 August 1985 setting forth the basic regulations as defined in section 2(1.1) thereof. Negotiations are concluded either with a protocol agreement between the two parties or by a statement of their respective positions. If an agreement is reached, the authority is politically bound to adopt or have adopted the measures on the matter on which the agreement was concluded; - with respect to the extent of negotiation, a distinction should be made between the Finance sector and the Telephone and Telegraph Administration sector.

&htab;57.&htab;The Finance sector includes the Ministry of Finance (38,809 persons), the National Trust (Royal Donation) (11 persons), the National Lottery (433 persons), the National Occupational Loan Fund (279 persons), the National Agricultural Loan Institute (439 perons), the Central Mortgage Office (144 persons) and the National Office for the Verification of Corporate Solvency (203 persons). Negotiation in this sector covers the above-mentioned subjects but is limited by various elements, viz. determination of basic regulations governing administrative and financial status and the pension system does not apply to contractual staff; it does, however, apply to staff members of the Ministry of Finance who are civil servants. However, the rules applying to civil servants are the responsibility of the national, community and regional public service commissions. The Government does, however, explain that, to the extent that the rules specifically applicable to the Ministry of Finance are drawn up in connection with the above-mentioned matters, they are subject to negotiation at sectoral committee level as are the rules relating to the organisation of social services in that sector. It should be added, moreover, that the complainant organisation does have access to consultation commissions created at sectoral-committee level or at that of the various public services covered thereby; these commissions have jurisdiction with respect to the measures specific to those sectors and services which are not defined as being regulated by the Royal Order of 29 August 1985. Furthermore, the complainant organisation is, by virtue of its seat on the consultation commissions, involved in the application and preparation of measures concerning safety, hygiene and the decoration of the workplace for the services concerned. Finally, the members of the staff of the National Occupational Loan Fund, the National Agricultural Loan Institute, the Central Mortgage Office and the National Office for the Verification of Corporate Solvency are not civil servants. The responsibility for determining the conditions and status of the staff of those bodies is incumbent on their respective administrations. Such measures are submitted to the sectoral committee or the consultation commissions answerable to it.

&htab;58.&htab;Many of the arguments developed with regard to the Finance sector apply equally to the Telegraph and Telephone Administration, with a staff of 29,798 on 30 June 1983. This is especially so where the conditions relating to contractual staff are concerned. The members of this administration are not, however, civil servants whose status is regulated by the Committee for National, Community and Regional Public Services. The status of staff members of the Telegraph and Telephone Administration is determined by the sectoral committee. All of the measures covered by section 2 (negotiation) and section 11 (consultation) of the Law of 19 December 1974, such as those concerning administrative and financial status, will therefore be dealt with by the sectoral committee or the consultation commisions that it may create, with the exception of those concerning both administration employees and state employees (civil servants) in other public services subject to the Law of 19 December 1974. This being so, these measures would be the responsibility of one of the general negotiating committees referred to in section 3 of the Law.

&htab;59.&htab;In the view of the Government, these considerations show that the complainant organisation is able to exercise its collective bargaining rights and the prerogatives of representative trade union organisations with respect to meetings and the collection of union dues on departmental premises as well as the checking of examinations in those sectors in which it has been shown to be a sufficiently representative organisation. With respect to this last-mentioned point, the Government nevertheless recalls that the Free Civil Service Union holds that the complainant organisation is not representative enough to be granted access to the Telegraph and Telephone sectoral committee. It considers that the results of a further examination should be awaited before drawing any final conclusions with respect to the current representativity of the complainant organisation in the sector concerned.

&htab;60.&htab;According to the Government, it cannot be held that the complainant organisation - which is not associated with one of the main trends of the Belgian trade union movement - has been denied the place that it claims on the general negotiating committees as the examination of its representativity has shown that it was not the union that appeared the most representative of public service workers (nor even as a union sufficiently representative of such workers as a whole) and that it did not - by far - enjoy the support of a majority of the workers directly concerned.

&htab;61.&htab;The Government states, with respect to trade union allowances, that for many years very many sectors have been granting an allowance to their organised members. This allowance goes by various names such as supplementary social grant, social peace bonus, fidelity bonus, etc. This advantage is normally bestowed on workers through collective agreements reached in joint committees which are frequently made mandatory by Royal Order. Such allowances may also, quite frequently, be allocated under in-house agreements. Dozens of sectors thus pay trade union allowances to their manual workers under collective agreements. A dozen or more joint committees for non-manual workers also provide for such advantages.

&htab;62.&htab;The Government explains that the legality of collective labour agreements, reached at company or sectoral level and which provide for the granting of allowances exclusively to members of a trade union organisation, has frequently been recognised by courts and tribunals and it quotes specifically the Decree of 4 March 1982 issued by the Council of State in which the Council considers that the principle of equality between Belgians before the law in no way excludes persons in different circumstances receiving different treatment provided that this is done in the public interest on the basis of objective or general criteria. The Decree further states that membership of a union could be just such an objective criterion for the granting of social advantages and that, provided that the means used were proportional to the ends sought, this could justify different treatment being meted out to non-union members because this could lead to an improvement in social peace and company productivity. Moreover, the unemployment benefit and trade union allowance granted to union members is one possible way of adequately stimulating trade union affiliation which in turn could promote social peace and productivity in the undertaking.

&htab;63.&htab;The Government considers that it is not contrary to article 20 of the Constitution or to section 1 of the Law of 24 May 1921 to grant social advantages to those who join a given representative workers' organisation when the value of those advantages is not such as to cause the worker to feel obliged to join that particular organisation rather than any other.

&htab;64.&htab;In subsequent communications, dated 21 August and 16 September 1986, the Government forwarded three Council of State decrees concerning appeals lodged by the Postal Workers' Federation. It pointed out that the Federation's petition had been rejected in two of the three cases. The (petition concerning) cancellation of Decree No. 182 of 30 December 1982 concerning modernisation measures in the Postal Administration, the purpose of which had been to establish a consultative body called the "supervisory panel", and the (petition concerning) cancellation of the Decree of 30 November 1983 setting up a contact committee at the head office of each regional postal administration and at the general office of the Central Postal Administration were rejected by Decrees No. 26,282 of 19 March 1986 and No. 26,284 of 25 April 1986 respectively. Decree No. 26,283 of 19 March 1986, however, acceded to the petition filed by the complainant Postal Workers' Federation by cancelling the Ministerial Decree of 28 October 1983 approving the staff union of the Postal Administration as a non-profit-making association constituted to provide social assistance.

&htab;65.&htab;In addition to the foregoing, the Independent Union of Railway Workers (SIC), affiliated to the UNSI, reported in communications dated November 1986 and January 1987 that the Belgian National Railway Corporation had forbidden it to conduct any trade union activities to such a point that disciplinary measures may be taken against any SIC leaders who dare act in the name of the union. The complainant makes specific mention of the Chairman of the SIC, Mr. de Rycke, who, in his capacity as station master, had intervened in favour of one Pauwels in a letter addressed to the Railway Board, which letter was written on the headed paper of his union, and in which he referred to a productivity bonus that had been paid to the worker in question because of an industrial accident that he had suffered. The answer he received stated that the claim had not been made by an "approved" organisation. The Minister of Transport, with whom the matter of the recognition of the union had been broached, informed the complainant that he was powerless to change the negative attitude of the corporation.

&htab;66.&htab;The SIC explains that it was created on 28 January 1983 and it was merely requesting the status of "approved" organisation with the National Corporation and not that of an organisation "recognised to sit on the joint commission". Its complaint was accompanied by a copy of a letter from the General Administration of the Belgian National Railway Corporation, dated 30 December 1986, signed by M.S. Choupe and headed "Trade union relations", which read as follows:

I should, with respect to relations with the authorities, like to draw your attention to the fact that all collective claims or requests fall within the exclusive jurisdiction of recognised or approved trade union organisations; requests of a personal nature may be submitted only by the actual person concerned or by such an organisation. This practice is established by the provisions of the RGPS - Vol. 548 - paragraphs 366 and 8, and Annex I. Kindly draw the attention of your services to these provisions, including regional officers, and insist on their strict application.

The complainant maintains that this letter should have been sent to all regional managers.

&htab;67.&htab;In a reply dated 14 January 1987, the Government stated that it had no information on these matters and it had no intention of making any further comments. It added that the proceedings before the Council of State should, given their formal and precise nature, last a fairly long time and that it was difficult to state precisely when the decisions would be handed down.

&htab;68.&htab;In a communication dated 8 May 1987, the Government transmits a copy of the report of the Council of State's Auditor who examined UNSI's appeal and found it unfounded in law and in fact and declared it irreceivable. The Government adds, however, that this report is not the formal opinion of the Council of State, but rather represents an important step in the procedures.

&htab;69.&htab;Pursuant to the decision contained in paragraph 9 of its 248th Report, the Committee intends to consider the substance of this case, taking account of all items of information currently available.

(a) &htab;Representativity of the occupational &htab;organisations with respect to their &htab;right to sit on the National Labour &htab;Council

&htab;70.&htab;The Committee observes that with respect to the criteria adopted by the Government for refusing the UNSI the right to sit on the National Labour Council and for refusing its affiliate organisations the right to sit on general negotiating committees in the public sector, the Government claims these criteria to be objective and pre-established. It does, nevertheless, recognise that the legislature did not adopt any numerical criteria in order precisely not to limit "the broad power of discretion" accorded the Government . It merely points out that the criteria adopted are the " stability " of the organisation - which it reproaches with having been formed as recently as 1982, its " solidity " - which it finds structurally too modest as compared to the three organisations which sit on the National Labour Council and the " projection " of its work - which it finds insufficient in terms of reviews published, press conferences held and advertising.

&htab;71.&htab;The Committee thus observes that the criteria cited by the Government with respect to the representativity of this organisation which includes unions in both the private and public sectors and has a large membership (amounting to nearly 100,000 on the Government's own admission) are not to be found in legislation even if they are applied in practice. The Committee recalls the need for pre-established criteria to be embodied in legislation in order to avoid any possibility of partiality or abuse. Indeed, it recalls that it has indicated in the past that it is not necessarily incompatible with Convention No. 87 to accord negotiating privileges to the most representative unions if a number of safeguards are provided including: (a) certification is to be made by an independent body; (b) the representative organisations are to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organisation other than the certificated organisations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election (187th Report, Case No. 196 (Bahamas) and 222nd Report, Case No. 1163 (Cyprus). The very fact of ignoring the numerical criterion (nearly 100,000 members) and of considering only criteria not embodied in the law and which concern the stability and solidity of the organisation and its external "projection" means that these criteria do not appear to be pre-established once the Government itself refers to the wish of the legislature not to limit the broad power of discretion of the Government in deciding which of the most representative organisations should be invited to submit candidates to represent them on the National Labour Council. The Committee stresses this point all the more as, under current Belgian legislation, the consequence for the private sector of a refusal to allow the UNSI to sit on the National Labour Council will be that provisions of collective agreements concluded by its affiliated organisations with employers can be declared null and void if those provisions are at odds with the terms of an agreement concluded in the National Labour Council in application of the 1986 Law while, for the public sector, the consequence would be that UNSI-affiliated organisations would not be permitted to sit on general negotiating commissions which, under the 1974 Law, take precedence over sectoral committees in matters of collective bargaining.

(b) &htab;Representativity of the occupational &htab;organisations with respect to their &htab;right to sit on sectoral committees in &htab;the public sector

&htab;72.&htab;The Committee notes that some of the organisations affiliated to the UNSI have been able to establish their rights as representative organisations in two of the 15 sectoral committees even though one of them is still under investigation. In the meanwhile the Government has refused to offer the other organisations affiliated to the UNSI a chance to resubmit their request to be recognised in other sectors, reproaching them with being unrepresentative, especially considering that the periodical membership count can be effected only once every six years.

&htab;73.&htab;The Committee notes that under Belgian law, interim measures had been taken on minimum trade union dues and that under section 96 of the Decree of 28 September 1984, published on 20 October 1984, to comply with section 51.4 for the first time, the condition concerning minimum trade union dues had to be satisfied within four months following the publication of the section in question, that is to say, by 20 February 1985. Consequently - and contrary to the Government's allegation on refusing a membership recount on the grounds that consideration of the representativity criteria was pointless once the UNSI stated that, in 1983, it had no members in the 13 sectors which met the criteria - UNSI-affiliated organisations should have been entitled to resubmit to the Supervisory Committee their paid-up membership count in the various sectoral committees as of 20 February 1985. Even so, considering that ignorance of the law is no excuse and that the UNSI-affiliated organisations did not claim their representation rights before the Supervisory Committee by 20 February 1985, the Committee considers that this aspect of the case does not call for any further examinaton.

&htab;74.&htab;Moreover, and in more general reference to the criteria set in Belgian law with regard to the requirement that an organisation have a sufficient number of "paid-up members" and that it pay a "minimum trade union allowance" - in this case being 0.77 per cent of the monthly wage (sections 8 and 51 of the Law of 19 December 1974, as amended by subsequent decrees) - in order that it meet the representativity conditions in sectoral committees, the Committee considers that the requirement that proof be provided of the payment of a low "mimimum trade union allowance" may constitute an objective and pre-established criterion of representativity provided that the occupational organisation in question accepts the system of enumeration. Conversely, to avoid any possibility of partiality or abuse, the Committee alerts the Government to possible opening of the way for discretionary power to be exercised by the authorities through the expression " a sufficient number of paid-up members " which would be incompatible with the need for objective and pre-established criteria, to the extent that the notion of "a sufficient number of paid-up members" is one which will remain vague as long as the legislation does not contain objective and pre-established criteria of a precise nature.

(c) &htab;Scope of collective bargaining in &htab;sectoral committees

&htab;75.&htab;With respect to the scope and extent of collective bargaining in sectoral committees, the Committee notes that, according to the Government, collective bargaining may take place in such committees on certain matters and for certain categories of workers. It notes, however, that this is limited in scope and extent in that the sectoral committees have jurisdiction over matters concerning the department or departments for which they have been established with the exception of those subject to negotiation in one of the general public sector negotiating committees (section 4(3) of the Law of 19 December 1974) on which a seat is conditional upon the organisation in question being an affiliate of one of the inter-occupational organisations sitting on the National Labour Council.

(d) &htab;Trade union allowances

&htab;76.&htab;With respect to trade union allowances, the Committee refers to its earlier conclusions concerning the symbolic level at which they must be kept in order to ensure that in no case may any advantage derived therefrom unduly influence the choice made by workers of the organisation to which they intend to belong. The Committee insists on this principle all the more given that, in its reply, the Government stated that the amount of the unemployment benefit and of the trade union allowance granted to members is a suitable means of stimulating affiliation to a given union. The Committee notes, however, that the Government itself admits that, in order to be legal, the social advantages granted to members of organisations representing workers should not be such as to make the worker feel obliged to join that union.

(e) &htab;Other matters

&htab;77.&htab;With respect to the negative consequences of non-recognition of the Independent Union of Railway Workers (SIC), which is affiliated to the UNSI as a trade union organisation recognised as being entitled to sit on joint commissions or commissions approved by the Railway Board, and the refusal of that same Board to consider the claim filed by the Chairman of the SIC in connection with a personal petition concerning a member of that union on the grounds that according to railway regulations, collective claims come under the jurisdiction of recognised or approved trade union organisations and that personal claims may be filed only by the individual in person or by such an organisation , the Committee considers that these railway regulations run counter to Article 3 of Convention No. 87. The Committee stresses the importance it has always attached to minority trade unions that have been denied the right to negotiate collectively being permitted to perform their activities and especially to speak on behalf of their members and to represent them in the case of an individual claim.

&htab;78.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) With respect to the absence of objective and pre-established criteria of representativity in the legislation to determine the rules governing access to the National Labour Council, the Committee requests the Government to adopt legislative measures containing objective and pre-established criteria of a precise nature so that organisations with national and inter-occupational coverage may claim their rights with respect to representativity.

(b) With respect to representativity of these organisations in sectoral or specific committees which are required by the terms of the legislation to have a "sufficient number of paid-up members", the Committee would again invite the Government to establish objective criteria of a precise nature in its legislation which can be cited before the Supervisory Committee.

(c) With respect to the freedom of collective bargaining of representative public or private trade union organisations and especially of the trade union organisation most representative of a given sector, where such an organisation exists, the Committee requests the Government to take measures to amend the law in order to ensure that such an organisation, should it manage to demonstrate its greater representativity, may have the right without hindrance to negotiate the employment conditions of its members, that is to say, without having to conflict with decisions adopted by general public sector negotiating committees (on which it may not sit unless it is affiliated to an organisation represented in the National Labour Council) or with the provisions of collective agreements negotiated in the National Labour Council (from which it is similarly barred from sitting). (d) With respect to the negative effects suffered by an organisation not granted the status of recognised or approved trade union organisation, the Committee would request the Government to ensure that this situation does not cause the trade union organisation in question to lose any other rights which even minority organisations should enjoy, especially those concerning the personal claims of their own members.

(e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

&htab;79.&htab;The Committee examined Case No. 1275 at its meetings of November 1984 and November 1985 [see 236th Report, paras. 444 to 458, and 241st Report, paras. 522 to 550, approved by the Governing Body at its 228th and 231st Sessions (November 1984 and November 1985)].

&htab;80.&htab;The complaint in Case No. 1368 is contained in a communication from the World Confederation of Labour (WCL) and the World Federation of Industrial Workers (WFIW), dated 9 April 1986. The Government replied in a communication of 6 October 1986.

&htab;81.&htab;At its February 1987 meeting, the Committee noted that the Government had not supplied full information concerning all of the pending allegations, in spite of the time elapsed since the last examination of Case No. 1275, and since the presentation of allegations in Case No. 1368; the Committee accordingly informed the Government that it would submit a report on the substance of the cases at its next meeting in accordance with its procedure (127th Report, para. 17), even if the observations requested from the Government had not been received.

&htab;82.&htab;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).

&htab;83.&htab;When the Committee examined the case at its November 1985 meeting, the question concerning the dismissal of Messrs. Duarte, Virgili and Cáceres, members of the Union of Employees of the Bank of Brazil, was pending judgement in court. The Committee adjourned its examination of this matter until judgement was pronounced, and requested the Government to transmit a copy of the judgement as soon as it was handed down [see 241st Report, para. 550]. In this connection it would be useful to recall the information gathered during the direct contacts mission carried out in Paraguay from 23 to 28 September 1985, which is reproduced below [see paras. 27 to 29 of the mission report, which are annexed to the 241st Report]:

&htab;"As regards the alleged dismissal of Messrs. Rolando 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 General Secretary. 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.

&htab;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. &htab;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."

&htab;84.&htab;In its communication of 6 October 1986, the Government states that the case concerning the dismissal by the Bank of Brazil of Messrs. Duarte, Virgili and Cáceres came before the Second Circuit First Instance Labour Court, which handed down definitive sentence No. 129/85. This sentence was appealed and the matter brought before the Labour Appeals Court on 26 July 1985. By means of sentence No. 24, the Appeals Court upheld the earlier sentence. Its decision in the matter was final (the Government states that it transmits a photocopy of the sentence, but none has been received by the ILO).

&htab;85.&htab;In their communication of 9 April 1986, the World Confederation of Labour and the World Federation of Industrial Workers allege that in spite of the fact that the National Trade Union of Metalworkers and Allied Trades (SINOMA) of Paraguay, founded in 1977, was legally recognised by the Ministry of Justice and Labour in 1978, the Labour Office has systematically refused to recognise an amendment to the trade union's by-laws which was duly approved by its Extraordinary General Assembly on 7 October 1983; nor has it recognised the trade union's Executive Board which was duly elected in 1984. Moreover, the police have twice prevented the trade union's General Assembly from meeting, first on 20 December 1985 under the pretext that the corresponding permit had not been requested, and next on 31 January 1986 as the result of pressure applied by the CTP, the pro-government central federation from which the SINOMA withdrew in accordance with the decision of its members, and owing to the CTP's ineffectiveness and its submission to the dictatorial regime.

&htab;86.&htab;In its communication of 6 October 1986, the Government states that the Trade Union of Metalworkers and Allied Trades (SINOMA) had requested the recognition of its Executive Board, and that the Labour Office, after having verified compliance with the requirements stipulated by the Labour Code, recognised the SINOMA's Executive Board by means of resolution No. 1076, dated 28 August 1986.

&htab;87.&htab;In the first place, the Committee deplores the fact that, despite its urgent request addressed to the Government in February 1987, the Government has not sent a full reply to all of the questions pending. In this connection the Committee recalls that the objective of the procedure is to foster the respect of de jure and de facto trade union rights; since the procedure protects governments against unjustified accusations, the Committee expects governments to recognise that the preparation of detailed replies to all allegations ensures an objective examination of the case.

&htab;88.&htab;As regards the dismissal of Messrs. Duarte, Virgili and Cáceres (members of the Union of Employees of the Bank of Brazil) in 1984, during the course of collective bargaining procedures (Case No. 1275), the Committee notes that the Court of Appeal upheld the sentence handed down by the Second Circuit First Instance Labour Court, which denied the reinstatement of the interested parties.

&htab;89.&htab;The Committee notes that, according to the preamble of the sentence handed down by the First Instance Court, the employer failed to invoke justified lawful grounds for the dismissals. Likewise, the sentence states that "the stability of employment is regulated by sections 95, 69(h) and 131 of Paraguay's Labour Code. Section 95 provides for the stability of employment, stipulating that workers who have been in the service of the same employer for more than ten years shall not be dismissed unless justified lawful grounds for dismissal can be proved. The stability of employment, however, is not absolute, and in cases envisaged in section 98 of the Labour Code, workers who cannot be reinstated are paid special compensation. Section 69 establishes the concept of general stability: the employer may dismiss workers without lawful grounds, but he assumes full responsibility for the required financial compensation."

&htab;90.&htab;The Committee considers that it does not have sufficient information concerning the dismissals in question to determine whether or not they constitute anti-trade union discrimination, especially in view of the contradictory statements made by the trade union and by the employer made to the direct contacts mission in September 1985. In any event, in view of the sentence and Paraguayan labour legislation, the Committee concludes that the workers with less than ten years' service in the enterprise do not enjoy sufficient legal protection against dismissals for legitimate trade union activities.

&htab;91.&htab;In this connection, the Committee draws to the Government's attention the fact that national legislation does not give sufficient protection against anti-trade union discrimination when it authorises employers to dismiss workers without just cause on condition that they pay the compensation prescribed by law; in fact, such a situation implies that an employer who pays the compensation prescribed by law may dismiss any member of his staff for trade union or other activities, the public authorities being powerless to prevent him from doing so. (See, for example, 246th Report, Case No. 1339 (Dominican Republic), para. 87.)

&htab;92.&htab;As regards Case No. 1368, the Committee notes that, in reply to the allegation that the Labour Office refuses to recognise the Executive Board of the SINOMA which was elected in 1984, the Government has replied that the Executive Board of the trade union was duly registered on 28 August 1986, after having complied with the provisions of the Labour Code. In this connection, the Committee regrets the delay in the registration of the above-mentioned Executive Board and the fact that the Government has not given more complete information in this regard. The Committee draws the Government's attention to the fact that the registration of the executive boards of trade union organisations should take place automatically when reported by the trade union, and should in principle be contested only at the request of the members of the trade union in question.

&htab;93.&htab;Lastly, the Committee deplores the fact that the Government has not replied to the allegation that the police prevented the meeting of the SINOMA's General Assembly in December 1985 on the grounds that a permit had not been requested, and again in January 1986, or to the allegation concerning the refusal of the public authorities to recognise an amendment to the trade union's by-laws. In the absence of the Government's observations in this regard, the Committee draws the Government's attention to the fact that the right to hold trade union meetings should not be subject to prior authorisation and that public authorities should refrain from any interference liable to restrict that right [see, for example, 233rd Report, Case No. 1217 (Chile), para. 109, and 236th Report, Cases Nos. 1207 and 1209 (Uruguay), para. 168], and that in accordance with Article 3 of Covention No. 87, workers' organisations have the right to draft their by-laws without any interference on the part of the public authorities.

&htab;94.&htab;In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Noting that the legislation does not give adequate protection against actions of anti-trade union discrimination, the Committee draws the legislative aspect of the cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations, and requests the Government to take measures with a view to adopting legislative provisions which effectively protect trade unionists and workers against dismissals based on trade union activities. (b) The Committee requests the Government to respect in the future, the principles outlined in the foregoing paragraphs concerning trade union autonomy in the drafting of trade union by-laws and in the election of executive boards, and non-interference in trade union meetings, and to take measures to remove the requirement for administrative authorisation to hold trade union meetings.

&htab;95.&htab;The complaint submitted by the International Organisation of Employers (IOE) dates from 12 February 1986. In the absence of a reply from the Government, the Committee addressed to it an urgent appeal to send its observations on this case and pointed out, at its March 1987 meeting, that, in view of the time which had elapsed since the complaint was presented, it might present a report at its next meeting on the substance of the case even if the Government's observations had not been received.

&htab;96.&htab;Nicaragua 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).

&htab;97.&htab;In its communication of 12 February 1986, transmitted to the Government on 18 February, the IOE points out that, on 16 January, the Communications Board of the Ministry of the Interior banned the daily newspaper La Prensa from publishing, at the request of the Council for Private Enterprise (COSEP), the recommendations of the Committee on Freedom of Association on Case No. 1317, approved by the Governing Body. This case concerned the ban imposed on the President of COSEP to go to a seminar organised by the ILO in Mexico in December 1984 and the removal of pages from his passport for this purpose.

&htab;98.&htab;Furthermore, the IOE recalls, regarding its 1981 complaint alleging infringements of freedom of information by the Government (Case No. 1007), that the Committee on Freedom of Association had at the time asserted that "the publication and distribution of news and information of trade union interest constitutes a legitimate trade union activity and the application of measures for their control may involve a serious interference by the administrative authorities" (218th Report). According to the IOE, the Government's repeated interferences illustrate the lack of importance it attaches to freedom of information, which COSEP should enjoy, and to the conclusions of the Committee on Freedom of Association and the Governing Body.

&htab;99.&htab;In reply to the Committee's request for observations from the Government on the cases pending, in particular on Case No. 1361, the Government, in a telegram dated 23 September 1986, asked the ILO for details on the various outstanding cases and, in a subsequent telegram dated 21 October 1986, pointed out that it was unaware of the content of the complaint concerning Case No. 1361.

&htab;100.&htab;The ILO therefore once again communicated the contents of the complaint to the Permanent Representative of Nicaragua to the United Nations Office in Geneva on 21 October 1986, 21 January and 8 April 1987. It also sent the contents of the complaint to the Minister of Foreign Affairs in Managua, on 8 April 1987.

&htab;101.&htab;Since that time, the Government has not submitted any further comments.

&htab;102.&htab;The Committee deeply regrets that the Government has not communicated its observations in spite of the requests and the urgent appeal made to it for a reply to the allegations made by the complainant organisation.

&htab;103.&htab;The Committee considers it useful to remind the Government that the purpose of the examination of complaints is to guarantee respect for freedom of association in law and in fact, and that if this procedure protects governments against unreasonable accusations, governments for their part should recognise the importance of submitting detailed replies to such allegations so that there might be an objective examination of them. In this respect, the Committee is of the opinion that the co-operation of governments in shedding light on the issues brought before the Committee by complainants can only serve to strengthen the full respect of freedom of association and the normal development of employers' and workers' organisations.

&htab;104.&htab;In the present case, the Committee notes that, according to the allegations, the Government banned the daily newspaper La Prensa from publishing, at COSEP's request, the recommendations previously adopted by the Committee on Freedom of Association on Case No. 1317.

&htab;105.&htab;In the absence of a denial from the Government concerning this allegation and having examined a document issued by the Communications Board of the Ministry of the Interior in Managua on 16 January 1986, and attached to the complaint, in which this Board asks the newspaper La Prensa not to publish the article entitled "The ILO asks for guarantees for workers" in its daily issue, the Committee can only regret this censorship imposed by the Government.

&htab;106.&htab;The Committee considers it necessary to draw the Government's attention once again to the fact that workers' and employers' organisations can only develop in a system which respects and guarantees basic human rights. Consequently, the Committee urges the Government to take steps to guarantee fully the right of employers' and workers' organisations to publish and distribute their information.

&htab;107.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee urges the Government to respect, in line with the requests made by the International Labour Conference in the 1970 resolution concerning trade union rights and their relation to civil liberties, the right of employers' and workers' organisations to publish and distribute their information.

&htab;108.&htab;In a communication of 1 April 1986 the Federation of Bank, Savings Bank, Insurance and Office Employees (FEBASO) filed a complaint alleging violation of freedom of association in Spain.

&htab;109.&htab;The Government sent its observations in reply to the allegations presented in this case in a communication of 15 December 1986.

&htab;110.&htab;At its February 1987 meeting, the Committee noted in its 248th Report (para. 11) that the Government's reply had been received and that the complainant organisation had filed an appeal on the grounds that a provision of the State's General Budget Act regarding certain categories of workers was unconstitutional. The Committee reminded the Government that its involvement in this case was not conditional on the exhaustion of all internal means of recourse, and informed the Government that it would examine the substance of the case at its next meeting.

&htab;111.&htab;Spain 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).

&htab;112.&htab;FEBASO, which states that it is an affiliate of the General Confederation of Workers (UGT), files a complaint against the Government of Spain alleging contravention of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;113.&htab;According to FEBASO, the facts in the case are as follows: in negotiating the 13th Collective Agreement, the Banco Exterior de España is attempting to apply the State's General Budget Act (Act No. 50 of 30 December 1984); section 44 of this Act limits the pensions paid to the so-called passive categories of workers who are covered by social security or by any other scheme which is financed, wholly or in part, by public funds, to a maximum of 187,950 pesetas (corresponding to approximately 3,000 Swiss francs at the December 1984 rate of exchange, or 2,350 Swiss francs at the April 1987 rate of exchange). However, according to FEBASO, sections 179 to 186 of the 12th Collective Agreement of the Banco Exterior de España stipulate that the employees of this bank are entitled upon retirement to a pension equal to 100 per cent of their prior annual cash remuneration, including family allowances.

&htab;114.&htab;According to FEBASO, the application of sections 44 and 46 of Act No. 50 to the bank's employees undermines their right to collective bargaining, which is recognised in article 37, paragraph 1, of the Spanish Constitution; article 37 stipulates that the law shall guarantee the right of collective bargaining between employers' and workers' representatives, as well as the binding nature of their agreements. Article 53, paragraphs 1 and 2, of the Constitution guarantees freedom of association and its derivative rights, including the right to free collective bargaining.

&htab;115.&htab;FEBASO contends that Act No. 50 does not be apply to workers who are neither public officials nor workers in the so-called passive categories. In fact, the scope of the budgetary Act in question extends only to state enterprises that receive subsidies or other forms of financial assistance from the State, and this is not the case of the Banco Exterior de España.

&htab;116.&htab;In conclusion, according to FEBASO, the application of Act No. 50 in the present case seriously undermines Article 4 of Convention No. 98, which Spain has ratified, by infringing upon the freedom of association and the right of collective bargaining of the workers of the Banco Exterior de España. Lastly, the complainant organisation attaches to its communication extracts from Budgetary Act No. 50 and from the 12th Collective Agreement.

&htab;117.&htab;In its reply of 15 December 1986, the Government notes that the complaint does not concern the application of an Act or of a collective agreement previously negotiated between the parties, which according to the Spanish Constitution (article 37, paragraph 1) is in fact binding, but concerns rather the existence of a legal framework established prior to the commencement of bargaining procedures, as a result of which the employer claims not to be able to meet certain demands of workers, owing to legal limitations which fall beyond its competence, but which nevertheless apply to the bargaining process.

&htab;118.&htab;The complaint is based essentially on the alleged inapplicability of an Act to a given enterprise, on the grounds that it does not receive state subsidies or financial assistance. The Government considers this claim to be highly inaccurate, inasmuch as the Banco Exterior de España is a state corporation in which the State holds a majority interest.

&htab;119.&htab;The Government agrees that article 37, paragraph 1, of the Spanish Constitution guarantees the right of collective bargaining between employers' and workers' representatives, as well as the binding nature of their agreements, but adds that article 131 of the Constitution also provides that the State, by means of legislation, may plan general economic activity in order to safeguard the public interest, to balance and harmonise regional and sectoral development, and to promote the growth of income and property and their just redistribution. Lastly, article 53 of the Constitution stipulates that the rights and freedoms in question concern the public authorities and that the exercise of such rights and liberties is subject to law.

&htab;120.&htab;According to the Government, Budgetary Act No. 50 of 30 December 1984 regulating the national budget, which concerns the State's budget for 1985, and which is mentioned in the complaint, falls within this framework. For the first time, this Act addressed the issue of the income of state enterprises which receive state subsidies or other forms of financial assistance; the Act effectively institutes a reform of the pension system covering the so-called passive categories of workers. It stipulates that the pensions of the different social protection schemes must be considered as a whole with a view to limiting the constant rise in pensions.

&htab;121.&htab;Act No. 46 of 27 December 1985, concerning the national budget for 1986, complements the earlier Act by refining the policy aimed at redistributing public revenue.

&htab;122.&htab;The Government confirms that these two Acts established a ceiling of 187,950 pesetas per month for pensions received by a single person, regardless of whether the pension comes from a single source or from several public retirement schemes; it notes that the Banco Exterior de España, as a state enterprise, belongs to such schemes.

&htab;123.&htab;In the opinion of the Government, Act No. 50 of December 1984 does not infringe the right of collective bargaining; it does, however, conform with the constitutional mandate for planning general economic activity with a view to achieving a fairer redistribution of income and property, and thus applies to the negotiation of collective agreements.

&htab;124.&htab;The Government adds that the Constitutional Court has yet to rule on the applicability of the Budgetary Act as regards collective agreements already in force; according to the Government, however, this has no bearing on the present case.

&htab;125.&htab;The Government also states that, as had been reported by the Under-Secretary of State to the President of the Banco Exterior de España in a communication of 6 May 1986 in reply to a question posed by the bank's Executive Committee, the Ministry of the Economy and Housing considers that it is not possible to invoke the acquired rights of future pensioners against Act No. 50, since the Act in question applies to the Banco Exterior de España, as a state enterprise which receives subsidies and other financial assistance from the State.

&htab;126.&htab;As regards the allegation that Act No. 50 infringes the provisions of Article 4 of Convention No. 98, the Government considers that it has in no way infringed this Article, in the sense that the Government has complied with all pertinent provisions, namely by adopting all measures necessary to encourage and promote collective bargaining between employers' and workers' representatives, and that it has not undermined the exercise of freedom of association. In the case at hand, it is simply a question of bringing the substance of future collective agreements into alignment with economic policy guide-lines issued by the Government with a view to ensuring a more just redistribution of social benefits and costs.

&htab;127.&htab;According to the Government, there has been no infringement of the right of collective bargaining, and the complaint is thus inadmissible.

&htab;128.&htab;The Committee notes that the complaint essentially concerns the effects of restrictive budgetary legislation on the renewal of certain clauses of a collective agreement covering the retirement pensions of former employees of state enterprises that receive state subsidies or other forms of financial assistance.

&htab;129.&htab;In the present case, the Committee notes that the Government itself acknowledges that Budgetary Act No. 50 of 30 December 1984, concerning the State's budget for 1985, as well as Act No. 46 of 27 December 1985, concerning the State's budget for 1986, set a ceiling of 187,950 pesetas per month as the maximum retirement pension that a single person may draw.

&htab;130.&htab;The Committee also notes that sections 184 and 185 of the 12th Collective Agreement of the Banco Exterior de España expressly stipulated that the enterprise undertook to pay the difference between the social security pension, or that of any other public or private body to which the bank paid contributions, and 100 per cent of the total annual cash remuneration of staff having reached the age of 60 years and having 40 years of service in the occupation, or 35 years of service in the Banco Exterior de España, based on the wages of the 36 months preceding retirement. It also notes that the Government confirms that the new collective agreement (the 13th Collective Agreement) must conform with the provisions of Act No. 50.

&htab;131.&htab;The Committee considers that, to the extent that Act No. 50 of December 1984, renewed in 1985, applies to pensioners covered by the 12th Collective Agreement by setting a ceiling of 187,950 pesetas per month for retirement pensions, this legislation undermines the previously negotiated contractual rights of former workers to receive 100 per cent of their annual cash remuneration after 40 years of service in the occupation, or 35 years of service in the Banco Exterior de España.

&htab;132.&htab;The Committee takes note of the Government's arguments concerning its responsibility as regards a more equitable redistribution of income and property; nevertheless, the Committee recalls that governments must always prefer persuasion to constraint as regards collective bargaining, and permit the parties to reach their final decisions freely.

&htab;133.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (a) Concerning the measures contained in the provisions of the Budgetary Acts of 1984 and 1985, which establish a ceiling for retirement pensions in the public sector, and in particular a ceiling for the retirement pensions of employees of the Banco Exterior de España, the complainant in this case, the Committee considers that such measures effectively undermine the retirement rights of such workers; the Committee notes, however, that the Constitutional Court has yet to rule on the applicability of these Acts as regards the collective agreements already in force.

(b) The Committee recalls that governments should rely on persuasion rather than constraint, and that in any event, the parties should be free to reach their final decisions.

(c) Consequently, the Committee requests the Government to take steps to re-examine the legislative provisions in question and to endeavour to ensure that the questions concerning the fixing of retirement pensions of workers be resolved by direct negotiation between the parties.

&htab;134.&htab;The complaint of the National Federation of Public Service Unions (FNSFP) is set out in a communication of 3 September 1986. The Government presented its observations in communications of 3 August 1986 and 24 April 1987.

&htab;135.&htab;Portugal has ratified the Freedom of Association and Protection of the right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

&htab;136.&htab;The National Federation of Public Service Unions, an organisation affiliated to the General Confederation of Portuguese Workers (CGTP-IN), which claims to represent the majority of workers in the health sector except physicians and nursing personnel, alleges a violation of the Labour Relations (Public Service) Convention (No. 151) by the Government of Portugal, which has ratified that Convention.

&htab;137.&htab;The Federation makes a specific allegation that the Government, in the person of the Minister of Health, has failed to comply with Articles 6 and 7 of Convention No. 151, which provide that:

&htab;Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently ...

and that:

&htab;Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.

&htab;138.&htab;The complainant Federation states that on many occasions from November 1985 onwards it has requested an audience with the Minister of Health in order to discuss various questions relating to workers in the health sector - questions which are recorded in a memorandum annexed to the complaint - but has received no reply from that member of the Government. For the same purposes it states that it has gone so far as to ask - more than once - the Prime Minister to intervene. Since that approach also went unanswered, the workers in the sector in question have, as a means of bringing pressure to bear, held rallies near the Ministry of Health and called strikes: first a one-day strike on 5 June 1986 and then, after issuing a strike notice, a second strike scheduled for 20 June 1986.

&htab;139.&htab;The Federation further alleges that 28 leaders of the Union of Public Service Workers of the South and Azores, one of its affiliated trade unions, and other trade union activists were arrested by the security police while they were waiting in the street, near the Ministry of Health, to be granted the audience they had requested, and were detained from 7 to 9 July 1986. They were taken to the police station where, after they had identified themselves, a charge was laid against them.

&htab;140.&htab;The Government takes the view that the complaint made in this case should be examined from two angles: first as regards its legislative aspect, i.e. by looking at the questions which the complainant organisation describes in general terms as "various questions relating to workers in the health sector" in relation to the provisions of Convention No. 151 and of Legislative Decree No. 45-A/84 giving effect to it in Portuguese law; and secondly in its factual aspect.

&htab;141.&htab;With regard to the legislative aspect of the case, the Government begins by drawing attention to the flexibility of the provision laid down in Article 7 of Convention No. 151 which, without prejudice to national conditions in each member State, leaves open the possibility of resorting, in order to determine conditions of employment in the public service, to methods other than collective bargaining on condition that they allow representatives of public employees to participate in the determination of these matters.

&htab;142.&htab;Portugal, after ratifying Convention No. 151, adopted Legislative Decree No. 45-A/84 instituting a mixed system of collective bargaining and participation that delimits those matters on which the right of collective bargaining is recognised and those in which the right of participation is recognised. Thus collective bargaining is required to deal compulsorily and exclusively with the matters specified in section 6, subsection 1, of the Legislative Decree, namely: salaries and other benefits in the nature of remuneration, retirement pensions and the reform of social and supplementary benefits. Such bargaining may be proposed, under section 7, by any of the parties. According to the Government, however, none of the matters listed in the memorandum addressed by the Federation to the Ministry of Health falls within the scope of the above-mentioned provisions, so that any collective bargaining on those matters and, with it, any obligation on the Government to act on the trade union organisations' proposal are precluded by law.

&htab;143.&htab;The Government states that the right of participation is recognised by section 9 of the Legislative Decree and must be exercised when legislation is being prepared on the general or special regime of the public service or on the management of social security institutions and other institutions designed to serve the interests of the workers, and when the execution of economic and social plans is being checked. By the terms of that section, it is in the nature of a consultation. Consequently the initiative in calling for participation must be taken, not by the trade union associations, but by the Government; therefore, since there is no doubt that the Ministry of Health has consulted the trade union associations concerned, the complainant Federation's accusation has no basis in law.

&htab;144.&htab;The Government considers it important to point out that some of the subjects mentioned in the memorandum which the complainant Federation wished to discuss with the Ministry of Health are outside the scope of collective bargaining and even of participation. Indeed, such questions as "substantive definition", "regime of installation", "restructuring of management" and "composition of the Lisbon District Assembly", which are mentioned in the memorandum, are topics which by their very nature expressly preclude, under section 12 of the aforementioned Legislative Decree, any possibility of bargaining or participation.

&htab;145.&htab;The Government concludes that none of the subjects at issue qualifies for collective bargaining and that, with regard to the subjects on which it is possible for industrial organisations to participate, the Ministry of Health has held consultations in accordance with the provisions of law.

&htab;146.&htab;As to the facts, the Government affirms that the Ministry of Health has always taken care to reconcile the priorities which the Government assigns to its activities with respect for the functions, powers and competence of trade union associations. Thus it has always endeavoured to maintain contacts with all trade unions concerned and these have become closer since June 1986. It mentions as examples the meetings which have been held since January 1986 with the Union of Diagnostic and Therapeutic Technicians for the purpose of drafting legislation to define the functions, powers and skills of the categories of technical staff assigned to diagnosis and therapy; and those held since February 1986 with the Union of Nurses of the North, Centre, South and Madeira Autonomous Region to discuss the question of bringing under the Ministry of Education the instruction given in the course of nurses' training; reorganising career nursing on a new basis; and re-examining the terms on which nurses qualify for retirement. The drafting of legislation on these latter points has already been completed.

&htab;147.&htab;Apart from those mentioned above, meetings have also been held with other trade union associations such as the Public Administration Workers' Union (affiliated to the General Union of Workers), the Union of Paramedical Technicians of the North and Centre, the Union of Health and Social Security Workers and the physicians' trade unions, through their co-ordinating body.

&htab;148.&htab;With specific reference to the complainant Federation, the Government adds that an initial meeting was held in the Office of the Minister of Health on 2 October 1986. Since that date, further meetings have been held with the Federation, but not with it alone, at regular intervals to deal with various questions such as the drafting of several legislative texts concerning in particular the implementation of the restructuring of 1985; the regulation of competitive entry and access to the profession of diagnostic and therapeutic technicians; the regulations establishing a classification for the service of diagnostic and therapeutic technicians; the careers of auxiliary staff of health services and establishments; the specific career of staff appointed to direct health services; the career of auxiliary health technicians; adjustments to certain categories and career patterns in order to correct situations deemed anomalous (e.g. in the case of hospital department heads, midwives, parasitological prospecting assistants, and auxiliaries assigned to the control of certain diseases); and conditions for the admission of staff to health services.

&htab;149.&htab;The Government states that in other areas the Ministry plans to hold discussions with the complainant Federation in the near future in accordance with the list of demands it has presented.

&htab;150.&htab;Hence the Government considers that the assertions made in the communication from the complainant organisation last September are meaningless and baseless inasmuch as the Ministry of Health, as part of the process of keeping in touch with all the trade union organisations concerned, began a series of regular contacts in October 1986 with that Federation.

&htab;151.&htab;It categorically denies the allegation that demonstrators have been arrested on the orders of the Minister of Health. It states that the security police are under the authority of another ministerial department and that, if arrests have been made, they were neither ordered nor demanded by the Minister of Health.

&htab;152.&htab;The Government points out that in previous cases the Committee on Freedom of Association has come to the conclusion that allegations concerning measures taken against trade union activists called for no further detailed examination if the measures in question were prompted, not by trade union activities, but merely by actions that went beyond the trade union framework either by causing a breach of law and order or by being political in character.

&htab;153.&htab;The Government observes incidentally that it is symptomatic that the complainant Federation, which is not the only trade union association representing the workers in the health sector, begins by excluding from its complaint the physicians and nurses who, so far as human resources are concerned, constitute the linchpin of this sector. It adds that the nursing staff have confidence in the good faith of the Minister of Health, as witness a press release dated 26 January 1987 which the Government annexes to its reply.

&htab;154.&htab;The Government states that the trade union activists who occupied the public highway for several days, interfering with traffic and the freedom of movement of pedestrians and disturbing the peace, were questioned by order of the police authorities for the purpose of checking their identity and recording their statements in official reports. The Government repeats, however, that the Minister of Health had nothing to do with such arrests, which he neither ordered nor demanded.

&htab;155.&htab;The Government states that, as soon as the Ministry of Health saw fit to have studies made with a view to possible revision of the law on one or other aspect of the regulations governing workers in the health sector, the Department began getting in touch with the trade union organisations in accordance with a procedure which from the formal standpoint should be regarded as a method of performing the duty of consultation: in order words, of enabling the trade union associations to exercise their right of participation. The Government attaches to its reply a document which sets out in chronological order the start made on consultations with various trade union associations. This document proves that the complainant Federation and its affiliated trade unions have been included among the trade union associations consulted on a footing of strict equality with the other associations, and that no special status whatsoever, either favourable or unfavourable, has been assigned to it.

&htab;156.&htab;The Committee notes that the complaint concerns the alleged refusal of the Government to receive the complainant trade union organisation, which wished to discuss with it questions concerning workers in the health sector. According to the memorandum attached to the complaint, the questions which the complainants wished to discuss concerned the following points: (1) the regional administration of health (substantive definition); regime of installation (management, competitions and promotion); composition of the Lisbon District; (2) hospitals (restructuring of management; fixed-term appointments; entry competitions; careers); (3) the careers of drivers, general health service personnel and diagnostic and therapeutic technicians.

&htab;157.&htab;According to the complainants, the Government refused to receive them and had 28 leaders of the Union of Public Service Workers of the South and Azores detained for two days, from 7 to 9 July 1986. According to the Government, on the other hand, it did not refuse to receive them and, if the police undertook questioning to check identities, the Minister of Health had nothing to do with such arrests; on the contrary, as soon as he decided to consider revising the law on the regulations governing workers in the health sector, he included the complainant Federation among the associations consulted.

&htab;158.&htab;The Committee notes with concern, first of all, that trade union leaders and militants were taken in for questioning by the police and kept for two days in the course of an operation undertaken in order to present their responsible Minister, i.e. the Minister of Public Health, with demands of an industrial nature. In this connection the Committee points out that it has always considered that the detention of trade union leaders and militants on the ground that breaches of the law may take place in the course of a strike or a peaceful public demonstration involves a serious danger of infringement of trade union rights.

&htab;159.&htab;Secondly, the Committee notes that, according to the Government, consultations are in progress concerning revision of the law on the health service personnel regulations and the complainant organisation, together with the other representative organisations in this sector, is consulted on the subject. In this connection the Committee hopes that the consultations in question will make it possible in the near future to adopt health service personnel regulations in which those concerned have confidence.

&htab;160.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes with concern that trade union leaders and activists appear to have been held for questioning by the police for two days in the course of an operation undertaken in order to present the Ministry of Health with demands of an industrial nature.

(b) The Committee points out that trade unions should respect legal provisions which are intended to ensure the maintenance of public order, but that the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organise the holding and proceedings of their meetings in full freedom.

(c) The Committee invites the Government to ensure that the consultations in progress will make it possible in the near future to adopt health service personnel regulations in which those concerned have confidence.

&htab;161.&htab;The complaints of the above-mentioned organisations appear in the following communications: that of the International Federation of Transport Workers in a communication of 13 June 1986; that of the European Organisation of Airline Pilots Associations in a communication of 8 September 1986; that of the Hellenic Airline Pilots Association in a communication of 24 October 1986, and that of the International Federation of Airline Pilots Associations in a communication of 23 December 1986. The Government sent its observations in communications dated 16 October 1986 and 10 March 1987.

&htab;162.&htab;Greece 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).

&htab;163.&htab;In this case the complainants allege a violation of freedom of association in Greece, following a labour dispute within the Olympic Airways Company which led to the arrest and dismissal of civil aviation workers.

&htab;164.&htab;According to the complainants the facts in the case are as follows: in early June 1986 the Hellenic Airline Pilots Association (HALPA), following a preliminary agreement with the management of Olympic Airways, made efforts to reach a final agreement. The discussions concerned wages and the effects of new taxation laws. After negotiations with management broke down, and after the Government refused to honour a previous agreement, HALPA decided to consider recourse to direct action. The trade union's council convened a General Assembly of unionised pilots on 5 and 6 June 1986, which was attended by 360 trade union members; voting by secret ballot, 271 members approved a variety of direct measures, including a strike, against 39 dissenting votes. The General Assembly also authorised the council to call a strike which was to begin on 14 June. The council officially announced the General Assembly's decision to the management of Olympic Airways on 7 June, in accordance with the law.

&htab;165.&htab;At the same time, the trade union provided management with the list of pilots and flight engineers to cover essential services, in accordance with Act No. 1264/1982. It provided the list of five crews (one for each type of aircraft), thus complying with requirements concerning the maintenance of essential services.

&htab;166.&htab;On 9 June 1986, the Minister of Transport, Mr. Papademetriou, informed the trade union's council that the Government would declare a state of national emergency and the civil mobilisation of airline pilots and flight engineers unless the trade union called off the measures it had scheduled and made a public announcement to that effect within 24 hours.

&htab;167.&htab;The trade union's council informed the Government that it did not have the authority to revoke the decision to strike, since the trade union's by-laws specified that the decision could be revoked only by the General Assembly. Nevertheless, it announced that it was ready to convene a new General Assembly for the purpose of conveying to it the Government's ultimatum.

&htab;168.&htab;The Minister insisted on the need to call the strike off immediately, and the trade union again replied that this would be illegal, and was therefore impossible.

&htab;169.&htab;In any event, on 9 June the trade union's council convened a new General Assembly for the 11th of the same month, which left enough time for deliberation since the strike had been called for the 14th of the month.

&htab;170.&htab;Nevertheless, on 10 June 1986 the Government proclaimed a national state of emergency by means of Ministerial Decrees Nos. Y164 and Y165, which the Government predated to 6 June, on the pretext that the pilots' strike represented a serious threat to the public safety.

&htab;171.&htab;On the same day, following the civil mobilisation, the airline pilots and flight engineers were individually summoned to appear before management; almost simultaneously, several of them were arrested for refusing to comply with the mobilisation. The International Federation of Transport Workers reports the arrest of 20-25 flight engineers and a like number of pilots.

&htab;172.&htab;It is alleged that among the persons arrested were pilots who were on sick leave, on annual leave, or in foreign airports with their planes, and who were arrested upon their return. Others were dismissed. Moreover, judicial, administrative and civil actions were undertaken. Other pilots were imprisoned and goods were confiscated.

&htab;173.&htab;It was at this time, according to the complainants, that two delegations representing the International Federation of Airline Pilots Associations (IFALPA) and the European Organisation of Airline Pilots Associations (OEAPL), to which the Greek trade union is affiliated, arrived in Athens to investigate the case and help to mediate a settlement to the dispute. They obtained assurances from the management of Olympic Airways and the Government that if the pilots and flight engineers returned to work, everything would return to normal and, in particular, that legal proceedings would be stopped and employees who had been dismissed would be reinstated. Some of these assurances were withdrawn shortly after having been given; nevertheless, a new General Assembly had already been convened for 24 June. In the meanwhile, the Government gave other assurances to the effect that it did not intend to carry out reprisals and that negotations should begin with a view to finding a solution to the problems.

&htab;174.&htab;The trade union's General Assembly, partly under the threat of on-going proceedings, and partly in the belief that the Government's intentions were honourable, decided to cancel the strike, and pilots and flight engineers returned to work as of 25 June.

&htab;175.&htab;However, neither the Government nor the management of Olympic Airways have shown any good will and have not kept their promises as regards reprisals. Judicial proceedings are still pending and 45 pilots and 15 flight engineers have been dismissed. Furthermore, Olympic Airways has employed the services of foreign pilots who are paid in foreign currencies at twice or more the rate of Greek pilots.

&htab;176.&htab;The International Federation of Airline Pilots Associations, in its communication of 23 December 1986, confirms that it undertook an inquiry on site in conjunction with the European Organisation of Airline Pilots Associations; both organisations sought to resolve the dispute by insisting on the need to reinstate the dismissed pilots and flight engineers and to return to the situation that prevailed before these measures were taken. It indicates that the trade unions's decision to call off the strike at the outset of the dispute, and to drop the contractual demands which had originally led it to call the strike, are evidence of its positive response in the face of the Government's repressive and vindictive attitude, and of the good faith of the Hellenic Airline Pilots Association. The International Federation goes on to say that this good faith must exist on both sides for a dispute to be resolved within a democratic framework. It further states that the Government had ulterior motives in forcing the trade union's capitulation by dubious methods; it claims that the Government sought to impose severe and long-lasting penalties against the trade union. It concludes by expressing its serious concern with the civil mobilisation, not only in connection with this dispute, when in fact it preceded the strike, but also in December 1986, when there was no dispute, and when the civil mobilisation was intended to resrict the individual liberty of pilots, to threaten their security of employment, and to intimidate them, regardless of the consequences that such actions might have on the safety of flights.

&htab;177.&htab;In its first reply of 16 October 1986, the Government acknowledges that warrants were issued for the arrest of pilots and flight engineers of Olympic Airways, and that a number of workers were dismissed, but it explains that these measures were made necessary by the refusal of those concerned to comply with a legitimate order for civil mobilisation.

&htab;178.&htab;The Government recounts the facts as follows: after the order of mobilisation was issued, a number of the airline company's staff refused, without any justification, to comply with the order of mobilisation and return to work. According to the pertinent legislation, a wage earner's refusal to return to work and fulfil his contractual obligations is considered as a unilateral termination of the employment contract, provided his absence is not due to circumstances beyond his control, regardless of whether or not a state of mobilisation has been proclaimed. Consequently, Olympic Airways considered as terminated the contracts of 48 pilots and 15 flight engineers.

&htab;179.&htab;Nevertheless, according to the Government, after having re-examined the cases of three pilots (Messrs. Dovanides, Kassavetis and Aslanoglu), and having found that their refusal to work was based on circumstances beyond their control, Olympic Airways revoked the dismissal of these three persons.

&htab;180.&htab;On the other hand, as concerns the other dismissed employees (45 pilots and 15 flight engineers), Olympic Airways considered that they had, of their own volition, terminated their contracts of employment and that their dismissal was not subject to review.

&htab;181.&htab;Furthermore, the public prosecutor filed judicial proceedings against those concerned for infraction of the act of civil mobilisation, and the Government contends that no-one has the right to interfere with the process of justice. Nevertheless, the public prosecutor informed the Government that all of the pilots arrested and imprisoned for violation of Legislative Decree No. 17 of 1974 on the "Civil mobilisation in the event of emergency" have been released under bond after periods of imprisonment ranging from three to eight days, and that no-one is currently being held.

&htab;182.&htab;Subsequently, in a telegram of 10 March 1987, received at the ILO immediately after the March session of the Committee on Freedom of Association, the Government declared that it had been informed by the management of Olympic Airways that the persons concerned had been reinstated to their positions following a recent agreement between Olympic Airways and the pilots and flight engineers who had been dismissed for refusing to comply with the civil mobilisation order. According to the Government, the case has been concluded to everyone's satisfaction and all proceedings have been suspended.

&htab;183.&htab;The Committee notes with concern that in the present case, as the Government itself has admitted, measures for the arrest and dismissal of workers were taken by the public authorities and the management of Olympic Airways following a labour dispute and the proclamation of civil mobilisation.

&htab;184.&htab;It notes, however, that according to information furnished by the Government, the pilots who had been arrested for refusing to comply with the order of mobilisation were released after periods of imprisonment ranging from three to eight days; that three dismissed pilots who were able to show that their non-compliance with their employment contract was not intentional were immediately reinstated; that the other 45 pilots and 15 flight engineers who had been dismissed were subsequently reinstated; and that all proceedings have been suspended.

&htab;185.&htab;Nevertheless, the Committee wishes to remind the Government of the importance it has always attached to the right of workers and their organisations to resort to strikes as a legitimate means of defending their economic and social interests. In the present case, the Government has not contested the social and economic aspect of the claims filed by the pilots and flight engineeers of Olympic Airways, nor has it explained the reasons that led it to proclaim the civil mobilisation.

&htab;186.&htab;On this point, the Committee recalls that it has always urged governments desiring to see labour relations develop in an atmosphere of mutual confidence, to have recourse, when dealing with situations resulting from strikes and lock-outs, to measures provided for under common law rather than emergency measures, which involve a danger, by reason of their very nature, of certain restrictions to fundamental rights [see Seventh Report, Case No. 56 (Uruguay), para. 69, 30th Report, Case No. 172 (Argentina), para. 204, 74th Report, Case No. 294 (Spain), para. 183, and 149th Report, Case No. 709 (Mauritius), para. 99].

&htab;187.&htab;The Committee has likewise always drawn the attention of governments to the fact that mobilisation or the requisition of workers in the event of labour disputes entails the possibility of abuse, and it has emphasised that it is ill-advised to resort to such measures unless the same are intended to ensure the operation of essential services in the most serious of circumstances or in extreme national crises.

&htab;188.&htab;In fact, the Committee considers that it is legitimate for a minimum service to be maintained in the event of a strike, the extent and duration of which might be such as to provoke an acute national crisis which might endanger the life, personal safety or health of the population. Nevertheless, such a minimum service should be limited to the operations which are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population, and that workers' organisations should be able to participate in determining such services, in conjunction with employers and the public authorities [see 234th Report, Case No. 1244 (Spain), paras. 153 and 154].

&htab;189.&htab;In the present case, the Committee notes with regret that trade union members were arrested and dismissed. As it has previously indicated in a case concerning Brazil [see 236th Report, Case No. 1270 (Brazil), para. 620], it considers that the requisitioning of strikers, the arrest and dismissal of several among them, and the recruitment of new workers for the purpose of breaking a legitimate and peaceful strike does not conform with the principles of freedom of association.

&htab;190.&htab;In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;Concerning the arrest and dismissal of pilots and flight engineers of Olympic Airways, the Committee draws the Government's attention to the principle that workers and their organisations should be able to resort to strikes as a legitimate means for defending their social and economic interests without being subject to anti-trade union reprisals, and expresses its hope that this principle will be fully respected in the future.

&htab;191.&htab;In a letter dated 28 November 1986, a complaint was made against the Government of Norway by the Norwegian Oil Workers' Federation (OFS) alleging infringement of trade union rights. The reply of the Government was contained in a letter dated 20 February 1987.

&htab;192.&htab;Norway 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).

&htab;193.&htab;The complaint relates to the use of compulsory arbitration in the North Sea oil industry, and specifically to legislation enacted on 5 May 1986 which put an end to a strike and referred a pay claim for settlement by the National Wages Board.

&htab;194.&htab;The complainant begins by referring to earlier complaints which it had made concerning similar circumstances which had arisen previously and had been dealt with by the Committee in 1980, 1981, 1982 and 1984, as well as to comments which it had addressed to the Committee of Experts on the Application of Conventions and Recommendations in 1986. It then points out that it is an association of four different federations - the Operator Workers' Federation (OAF); the Catering Workers' Federation (CAF); the Oil Drillers'm Federation (OBF); and the Union of Shipping Company Employed Oil Workers (ROF).

&htab;195.&htab;The complainant goes on to outline the circumstances which led up to a dispute resulting in strikes and lock-outs which commenced on 6 April 1986 and which were brought to an end by the introduction of legislation on the establishment of a compulsory wages board by the Government. According to the complainant, the first three of the federations referred to above started wage negotiations with two employer federations (the NAF and the NOAF) after the termination of existing wage agreements, but the CAF broke off these negotiations and on 19 March 1986 gave notice of a strike involving its members; and, two days later (21 March) the employer federations gave notice of a lock-out of members of the OAF and OBF. Both the strike and the lock-outs were the subject of a prohibition by the National Conciliation Officer on 22 March, and, following this, compulsory conciliation proceedings were instituted on two occasions i.e. on 25-26 March and 4-5 April 1986. The strike and the lock-out then took place from 6 April (it was extended on 20 April by OAF to include members on the British part of the continental shelf) and was only ended after the Minister of Labour had submitted an Act to the Cabinet on the application of a compulsory wages board, which was discussed in the Parliament on 30 April and adopted on 5 May.

&htab;196.&htab;The complainant continues by stating its view that the legislation, and the entire system of compulsory arbitration as applied to the North Sea oil industry, contravene the guarantees provided by Convention No. 87, by depriving workers in that industry of the right to strike and by undermining the possibility of genuine negotiations between the parties to disputes. It adds that the reasons given in the parliamentary discussion of the recent legislation are inconsistent with ILO criteria for the use of compulsory arbitration.

&htab;197.&htab;The complainant points out that the system of compulsory arbitration has been in existence since 1980 but that, as its application in relation to each dispute involves either the adoption of an Act of the Parliament or a provisional ordinance of the Cabinet when Parliament is not in session, there has been an opportunity for the Government to adduce arguments on successive measures in a way which complicates the position of the OFS as regards the obligations under ILO Conventions. The Government has thus been able to argue in relation to a current labour dispute that the use of the compulsory wages board does not violate these. Reference is in particular made to arguments advanced by the Government and by a committee of the Parliament which concern, in the first place, the length of the strike which is in turn related by them to its economic implications and next to alleged risks to the life, personal safety or health of the whole or part of the population.

&htab;198.&htab;On the matter of the economic implications, the complainant submits that the fact that the strike was allowed to last 20 days was in itself a reflection of a prevailing climate in which there had been a reduction in oil prices and in which Norway had been criticised by OPEC for being unwilling to cut production. It states further that it is false to claim that a strike of the kind in question results in a loss of revenue, because its real effect is only to postpone such receipts, and that in any event any calculation of the cost must depend on an estimate of crude oil prices far into the next century. It continues by stating its view that a principal motive for the introduction of the legislation was of a commercial nature, namely the possible effect on the ability to fulfil contractual obligations for the supply of gas, as evidenced by the absence of any consideration of the introduction of compulsory arbitration until the involvement of Norwegian workers on the British side of the Frigg gas field.

&htab;199.&htab;On the question of alleged effects on safety in the North Sea, the complainant regards this as a mock argument. It points out that the workers have not been opposed to the continuation of maintenance work during the course of the strike, and that it is very much in their interests that these matters be attended to as it is their lives and their safety that are at stake in the North Sea. There cannot be any reference to a conflict with the federations on this point, as the matter has never been raised with the parties to the labour dispute: the arguments on safety are only put forward in reference to allegations of Norway's violation of the ILO Convention.

&htab;200.&htab;In the view of the complainant, the reference by the Government in its argumentation before Parliament to safety risks is imprecise and hypothetical, whereas the ILO criteria require a more direct relation between the danger to life or health of persons or groups in the population than has been stated by the Government. The particular reference by the Government to the dangers arising from a long stoppage in the Ekofisk field and to the work which has begun on the resolution of problems concerning sinking platforms is not regarded by the complainant as bearing out the argument on this point as neither the authorities nor the employers have sought exemption from the Convention; and a postponement of this work for the weeks or even months of a strike would not result in dangers of the kind envisaged by the ILO as a permissible basis for the prohibition of a labour stoppage.

&htab;201.&htab;The complainant concludes by drawing attention once again to the consistent use since 1980 of the compulsory wages board against the oil workers of the North Sea, emphasising that this is not an isolated incident and that this consistent use of compulsory arbitration is contrary to the intention of the Convention.

&htab;202.&htab;In its letter of 20 February 1987, the Government refers to the breakdown in the spring of 1986 of parallel negotiations relating to six collective agreements concerning the North Sea, involving the employers' and workers' organisations mentioned in the complainant's allegations and, in addition, the Norwegian Oil and Petrochemical Workers' Union (NOPEF) which it states is part of the Norwegian Federation of Trade Unions and is concerned in three agreements covering operator activity, drilling and catering respectively. In effect, the Government confirms that, following a breakdown in negotiations and the failure to arrive at a settlement through compulsory mediation, strike action and a lock-out were implemented from 5 April 1986 leading to a total halt of all oil and gas production in the Norwegian shelf.

&htab;203.&htab;The Government goes on to state that further attempts at mediation during the course of the work stoppage also produced no new wage agreements and that there still appeared to be complete deadlock after three weeks despite additional efforts on the part of the State Mediator. It states that there was reason to fear that the conflict would be very long-lasting, and that the Government introduced legislation at this point for compulsory arbitration in the form of the compulsory referral of the dispute to the National Wages Board after a close assessment of the damaging effects of the work stoppage in which it gave considerable weight to the safety aspect of the conflict.

&htab;204.&htab;The Government refers to the technological complexity of oil activity at sea and the attendant risks to safety, which it states are increased by climatic factors and by stoppage of the equipment or failure to observe careful planning as to the stage at which equipment designed for continuous operation may be subjected to stoppage for maintenance purposes. The safety risk, it says, is greatly increased by a complete close-down of all installations on the Norwegian shelf as compared with those which are more limited in scope.

&htab;205.&htab;The Government believes that the application of Conventions must be considered with reference to the type of activity in question. A stoppage of three weeks is, in the view of the Government, a fairly long-lasting one, taking into account the nature of the activity and the extent of the stoppage. It points out that the safety risk increases the longer a close-down lasts. As it bears supreme responsibility for safety in the oil sector, the Government, after assessing the situation on a continual basis, concluded after nearly three weeks that the absence of any prospect of a voluntary solution being arrived at by the parties meant that it was duty bound to see to it that the conflict was brought to a conclusion.

&htab;206.&htab;The Government states that it has taken due note of ILO statements relating to encroachments on the right to strike, and refers in particular to the limitation on compatibility with the Conventions concerning circumstances involving clear and imminent effects which endanger the life, health and personal safety of the whole or part of the population. It states that the question is whether the damaging effects are of such a magnitude and nature that infringement of the right to strike can be said to be compatible with its commitments pursuant to international law, and that it endeavours to comply with the requirements imposed by the ILO Conventions on the authorities of member countries.

&htab;207.&htab;It is the Government's view that the passage of the measure for compulsory arbitration in order to put an end to the conflicts in the North Sea was compatible with the Conventions. If such an option were not available the result would be that, in order to fulfil the requirements of the Conventions, greater safety risks would have to be faced during a labour conflict than would be acceptable in other situations. Such a state of affairs would be unjustifiable and difficult to comprehend.

&htab;208.&htab;In concluding, the Government draws attention to its previous accounts of the trade union situation in the North Sea and of the central position of the oil industry in the Norwegian economy.

&htab;209.&htab;It would seem clear to the Committee that the circumstances described in, and the issues raised by, the present case are similar to those which it dealt with previously in regard to Norway, namely Cases Nos. 1099 and 1255 (see 217th Report of the Committee, approved by the Governing Body at its 220th Session (May-June 1982) paragraphs 449-470; and 234th Report of the Committee, approved by the Governing Body at its 226th Session (May-June 1984) paragraphs 171-192). It, therefore, draws the attention of the Government once again to the principles in terms of which restrictions on or prohibition of the right to strike can only be accepted in the public service or in essential services in the strict sense of the term, that is to say services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

&htab;210.&htab;The Committee has also taken note of the consideration of aspects of the present case by the Committee of Experts on the Application of the Conventions and Recommendations in 1987.

&htab;211.&htab;The Committee is aware that the Government has to a very large extent concentrated its reply to the allegations of the complainant (the facts of which do not appear to be a matter of contention) on the question of the potential effects on safety of the continuation of strike action in the North Sea installations. It has in particular noted the statement by the Government that it engaged in a process of continual assessment of this aspect of the matter before introducing the 1986 legislation on compulsory arbitration which put an end to strike action and gave rise to the complaint. The Committee is none the less conscious of the fact that the information contained in the Government's reply relates to generalised statements concerning the contingent effect of prolonged strikes in the context of the factors which create or influence potential hazards involved in North Sea oil exploration, rather than to factual evidence in relation to the 1986 strike of actual danger to the safety of any particular category of employees on the oil installations or any other part of the population. In the circumstances, the Committee is not convinced that any danger which may have been occasioned through lengthy work stoppages in the industry was of such a character as to meet the criteria established by the principles of freedom of association, i.e. that there existed a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

&htab;212.&htab;The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, after drawing attention to the principle already referred to, concluded its observations on this matter in 1987 with an invitation to the Government to consider taking the steps necessary to give effect to Convention No. 87, including the repeal or revision of provisions in the legislation which do not take account of the as above-mentioned criteria for the termination of strike action. The Committee reiterates those comments, and trusts that the Government will find it possible to undertake the requisite action to give full effect to the principle of freedom of association in question.

&htab;213.&htab;The Committee has also given attention to the recurrent nature of the problems which appear to have arisen over the period 1980-87 as evidenced in this and the two previous cases of a similar kind relating to Norway which it has had under consideration, as well as the treatment of related aspects of the matter by the Committee of Experts in its reports in recent years. The length of time involved in the repeated raising of these matters lead it to the conclusion that difficulties may exist as regards collective bargaining in the North Sea oil industry whose nature may have a bearing on the obligations of the Government deriving from the principles contained in Convention No. 98. The Committee accordingly draws the attention of the Government to the availability of the technical advisory services of the International Labour Office.

&htab;214.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;In regard to the use of legislative or other action to refer disputes in the North Sea oil industry to compulsory arbitration, the Government should take full account of the principles of freedom of association on the right to strike, and, in particular, that any restriction of that right should be strictly confined to essential services in the strict sense of the term, that is to say services the interruption of which would involve a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

&htab;215.&htab;In communications dated 20 and 23 October and 5 November 1986 the Palestine Trade Unions Federation (PTUF) submitted a complaint against the Israeli Government alleging the violation of trade union rights in the territories occupied by Israel. The World Confederation of Labour (WCL) endorsed the complaint in a communication dated 23 March 1987. The Government sent its observations in a letter dated 24 February 1987.

&htab;216.&htab;Israel 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).

&htab;217.&htab;In its communication dated 20 October the PTUF alleges that on 17 October 1986 the headquarters of the Union of Palestinian Trade Unions in Jerusalem was taken over and searched by the Israeli authorities and that some of the people present were interrogated and subsequently arrested. In a further communication dated 23 October it refers to other violations of trade union rights, mainly affecting the General Federation of Trade Unions of Nablus. It alleges that the Nablus Federation headquarters was closed for a month after the occupation forces had raided the premises at 11 a.m. on Sunday 24 September 1986 and ordered the Federation's General Secretary, Mr. Shehada El Minawi, to close them for security reasons. The General Secretary and the Treasurer, Mr. Shaher Saad, were placed under house arrest in Nablus for six months and required to register daily at the police station. The complainant also alleges the arrest of the Deputy General Secretary of the Union of Medical Services, Mr. Mohamed El Bechir, and of the General Secretary of the Union of Electrical Workers, Mr. Youssef Eid. In the same communication the Federation alleges that the occupation authorities raided the premises of the General Union of Enterprises in the villages of Abu Dis, Eizariya and El Sawahera in the province of Jerusalem, where they confiscated registers and files and took trade unionists to the police station for interrogation. On 21 October 1986 they raided the offices of the General Federation of Workers in Construction, destroyed equipment and arrested five trade unionists.

&htab;218.&htab;Another communication from the PTFU dated 5 November 1986 refers to the expulsion to Jordan on 3 November 1986 of Mr. Abdel Jabbar Choukri El Charabati, a trade union leader of the Confederation of Trade Unions of the West Bank and President of the Union of Ironworkers and Mechanics of the city of El Khalif. In another letter dated 5 November the complainant alleges that Mr. Akram Hanié, chief editor of the daily newspaper "Al Chaab", was arrested by the military government and expelled from the territory on 2 November 1986.

&htab;219.&htab;In its letter dated 23 March 1987, the WCL refers to the arrest of ten members of the executive committee of the Federation of Palestine Trade Unions in Gaza.

&htab;220.&htab;In all its communications the PTUF alleges that the Israeli authorities employ terrorist and racist tactics against trade unionists in the occupied Arab territories and that their attacks on trade unions and their property are particularly violent.

&htab;221.&htab;In a communication dated 24 February 1987 the Government of Israel communicated its observations on the complainants' allegation. To begin with, it states that it respects trade union rights and implements them scrupulously in the areas under its jurisdiction. It denies that trade union activities have been restricted or that union premises have been closed for their union activities. According to the Government, the four trade union federations operating in the West Bank of the Jordan and Gaza are linked in their activities to various Palestinian terrorist factions. Moreover, since the end of 1984 there has been an upsurge of terrorist acts disguised as trade union activities and that persons enlisted as trade unionists have been apprehended, charged and sentenced for their involvement in terrorism. The Government states that on numerous occasions members of trade unions have been convicted and sentenced for planting explosives and that such terrorist acts, like other illegal or political activities, are ostensibly being carried out in the name of legitimate trade union activity. It claims that the dissension among the trade union federations themselves is a reflection of their true nature and their major field of activity, which has nothing to do with their proclaimed mandate. In certain cases "unions" are established even if there is no occupational activity in their specific domain, as happened recently with the "Carpenters' Union" in the village of Daharia (Hebron). The Government supports its contention with leaflets issued by the Palestinian Trade Unions Federation, of the Fatah faction, on the theme of "PLO unity".

&htab;222.&htab;The Government states that it refrains from any intervention in the activities of the union organisations referred to by the complainants unless there is convincing information on their illegal or terrorist activities. Furthermore, it recognises the existence of non-registered trade unions. On the specific facts alleged in the communications of the complainant organisations, the Government supplies the following information:

- During the 17 October 1986 meeting of the Union of Workers in Nablus, members of the Israeli security forces searched for written material inciting people to engage in terrorist activities. None of the participants were arrested.

- The same is true of the 20 October 1986 workers' committee meeting in the villages of Abu Dis and El Sawahera, when the security forces found illegal material but arrested no one. - The closure of the office of the Federation of Trade Unions in Nablus on 24 September 1986 was carried out on the basis of reliable information on illegal activities, and specifically the recruitment of members for terrorist units. The Secretary-General, Mr. Shehada El Minawi, was placed under six months' house arrest by military order and two other members of the organisation, Mr. El Bechir and Mr. Youssef Eid, were arrested.

- Mr. Akram Hanié, chief editor of the daily newspaper "Al Chaab", and Mr. El Charabati of Hebron, both trade unionists, were expelled from the area because of their personal involvement in hostile activities on behalf of their mentors in the Palestinian terrorist organisations. The Government of Israel resorts to this type of measure only in extreme cases and only 14  persons have been expelled from the area, most of them to Jordan, in the past two years. A person against whom an expulsion order has been issued may appeal against it to the Supreme Court of Israel.

- The ten members of the executive committee of the Federation of Palestine Trade Unions in Gaza were summoned on 16 December 1986 for an investigation of their support of terrorist activities. Contrary to the complainants' allegations, none were arrested.

&htab;223.&htab;The Government declares that the State of Israel will continue to guarantee the free exercise of genuine trade union activities but is obliged to distinguish those activities from all those carried out by persons who "brandish trade union banners as their flag of convenience".

&htab;224.&htab;The Committee observes that this case concerns allegations of violations of the trade union rights of Palestinian trade unions and trade unionists in the Arab territories occupied by Israel. In the first place, the Committee notes that the alleged events took place on the West Bank of the Jordan and in the Gaza Strip, which are territories that have been under Israeli military occupation since June 1967 and as such, under the administration of the State of Israel. While it is not for the Committee to pronounce upon questions concerning the occupation or administration of these territories, the Committee would point out that, as a Member of the ILO, the Government of Israel is bound to respect the principle of freedom of association as contained in the ILO Constitution in respect of the occupied territories where its national legislation does not apply and in respect of which the ratification of the international Conventions on freedom of association does not of itself create an obligation vis-à-vis the ILO. The Committee recalls, in this respect, that its competence in the matter is independent of the ratification of the Conventions on freedom of association.

&htab;225.&htab;It is apparent from the complainants' allegations that the Israeli military authorities raided a number of trade union premises in Nablus and Jerusalem and that as a result the premises were temporarily closed and union meetings banned. In the course of these operations publications and documents were seized which, according to the Israeli Government, were not trade union material but of a political and even terrorist nature. The Committee has taken note of the 1 May 1986 leaflet communicated by the Government which, in the context of the workers' and trade union struggles, contains references to the PLO and to the international political situation as it relates to the Palestine issue. The Committee notes that in this particular instance the military operations were specifically directed only at trade union premises and that they were mounted to put a stop to activities that the Israeli authorities considered to be terrorist-related. The Committee is not in a position to rule on this aspect of the case, particularly since it is unable to judge with any degree of certainty from the facts before it whether in this particular instance the Palestine trade unions concerned acted in a way that went beyond the scope of genuine trade union activities. The Committee also notes that, for its part, the Government has not supplied sufficient precise information proving beyond doubt the political nature of the activities which the trade unions concerned are said to have engaged in and which could have justified the alleged military intervention. Consequently, the Committee recalls that freedom to hold trade union meetings is one of the fundamental elements of trade union rights and that it is an absolute corollary of the inviolability of trade union premises that public authorities should not be allowed to enter them unless they are in possession of a warrant issued by the judicial authority. [See 230th Report, Case No. 1166 (Honduras), para. 112.] The Committee also recalls that, in the interest of the normal development of the trade union movement, it would be desirable for the interested parties to abide by the principles set out in the resolution concerning the independence of the trade union movement adopted by the International Labour Conference at its 35th Session (1952), which stipulates, inter alia, that the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers and that, when trade unions in accordance with national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions, irrespective of political changes in the country. [See 201st Report, Case No. 842 (Argentina), para. 40.]

&htab;226.&htab;With regard to the restrictions on the movements of trade unionists, the six-month house arrest of the General Secretary of the Federation of Trade Unions of Nablus, Mr. Shehada El Minawi, the arrest of Mr. El Bechir and Mr. Youssef Eid and the six-month house arrest of the President of the Union of Mechanics, Mr. Shaher Saad, the Committee notes that the Government has provided no specific information on the matter. As to the house arrest of trade unionists, the Committee, while recognising that such a procedure may be motivated by a given critical situation, draws the Government's attention to the desirability of such measures being accompanied by all necessary safeguards in order to ensure that they cannot be used to hinder the free exercise of trade union rights. The imposition of penalties of this nature on trade union grounds is a violation of the principles of freedom of association. [See 172nd Report, Case No. 870 (Peru), para. 324.]

&htab;227.&htab;With respect to the expulsion of Mr. Akram Hanié, chief editor of the newspaper "Al Chaab", by the military governor and of Mr. El Charabati, trade union leader of the Confederation of Workers Trade Unions of the West Bank, the Committee notes that the Government merely indicates in its reply that such actions are taken only in extreme cases and that an appeal may in any case be lodged against them with the Supreme Court of Israel. In the case of Mr. Akram Hanié, it is not clear to the Committee whether the measures taken against him have been taken strictly on trade union grounds, particularly since the complainant organisations supply no details and since the person concerned is referred to simply as a trade unionist. The Committee has almost as little information regarding Mr. El Charabati. In the circumstances, the Committee can only recall that the forced exile of trade unionists, which is a violation of human rights, is particularly serious in that it deprives the persons concerned of the possibility of working in their country. In addition, such an action separates them from their families. Moreover, it is an infringement of freedom of association in that it weakens the trade union movement by depriving it of its leaders. [See 217th Report, Case No. 1104 (Bolivia), para. 316.]

&htab;228.&htab;The Committee further notes that six members of the executive committee of the Federation of Palestine Trade Unions in Gaza were summoned by the police on 16 December 1986 on suspicion of having engaged in terrorist activities. According to the information communicated by the Government, these persons were released after interrogation. In the absence of more precise information on this aspect of the case, the Committee has decided that it does not call for further examination.

&htab;229.&htab;In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee recalls that the right to hold trade union meetings is a fundamental aspect of trade union rights and that the inviolability of union premises should be respected by the authorities. It requests the Government to ensure that trade unions are allowed to organise their meetings on their premises without interference by the military authorities. (b) The Committee calls upon the Government to ensure that such actions as house arrest or the expulsion of trade unionists are accompanied by the necessary judicial guarantees and, in addition, to ensure that such measures are not employed in such a manner as to restrict trade union rights or constitute interference in the activities of the trade union organisations.

&htab;230.&htab;Cases Nos. 1176, 1195, 1215 and 1262 have been examined by the Committee on several occasions and most recently, in May 1986, in its 244th Report (paras. 258-275) approved by the Governing Body at its 233rd Session (May-June 1986), when the Committee submitted an interim report on these cases.

&htab;231.&htab;Since then the Government had sent only some incomplete information and observations in a communication of 17 September 1986, and the Office asked the Permanent Representative of Guatemala to the United Nations Office at Geneva, in a communication of 7 October 1986, and the Minister for Foreign Affairs, in communications of 1 December 1986, 27 January 1987 and 12 March 1987, to provide more detailed information in order to enable the Committee on Freedom of Association to examine these cases in full knowledge of the facts.

&htab;232.&htab;At its February 1987 meeting, the Committee addressed an urgent appeal to the Government to provide additional observations, and in paragraph 12 of its 248th Report drew the Government's attention to the fact that, having regard to the time which had elapsed since the filing of allegations in these cases, and in conformity with the procedural rule set out in paragraph 17 of its 127th Report, it would examine the substance of those cases at its next session even if the Government's observations had not been received at that date.

&htab;233.&htab;Furthermore the International Confederation of Free Trade Unions (ICFTU) has transmitted new allegations concerning Case No. 1195 in a telegraphic communication of 12 March 1987 and additional information on those allegations in a communication of 23 March 1987. The Government has communicated its observations in reply to ICFTU's latest allegations in a letter of 27 April 1987.

&htab;234.&htab;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).

&htab;235.&htab;The matters at issue in these cases relate to allegations of the detention, kidnapping, bodily assault and even murder of trade union activists and leaders. According to the allegations, the fate of certain persons has been unknown since January 1983.

&htab;236.&htab;On examining these cases at its May 1986 Session, the Committee concluded that the allegations related to a period before the change of regime in Guatemala. However, to its regret, the new Government had failed to send all the information requested by the Committee in a previous urgent appeal addressed to the Government at its February 1986 meeting.

&htab;237.&htab;In the circumstances the Committee formulated the following conclusions in its 244th Report (May 1986):

"(a) The Committee notes that the allegations relate to a period before the change of Government in Guatemala. The Committee expresses the firm hope that the new Government will send the information needed by the Committee to enable it to reach its conclusions in full knowledge of the facts.

(b) The Committee hopes that the new Government will 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 over a period of many years. The Committee stresses that these investigations should cover all the trade unionists who have been cited by the complainants as having disappeared and requests the Government to inform it of the outcome in the near future.

(c) With respect to the alleged murder of trade union leaders and trade unionists or serious physical harm inflicted on them, the Committee considers that the investigations carried out by the administrative authorities should be conducted by the judicial authorities. The Committee therefore urges the new Government to ensure that judicial inquiries are carried out in order to elucidate the facts in full and determine responsibilies; it requests the Government to inform it of any such inquiries and of any sanctions that might be imposed on the guilty parties. (d) Generally speaking, a climate of violence makes it impossible to exercise trade union rights; such rights should also be based on respect for civil liberties. The Committee therefore requests the Government to ensure respect for civil liberties, which are vital for the exercise of trade union rights.

(e) In accordance with Article 2 of Convention No. 87, teachers should, as in the case of other workers, enjoy trade union rights. The Committee urges the Government to ensure that this category of workers may legally set up trade union organisations.

(f) The Committee recalls that the legal formalities for registering a trade union should not be of such a nature as to hamper the setting up of occupational organisations, nor be applied in such a way as to delay or prevent their establishment. The Committee stresses that the Central Trade Union of Municipal Workers (SCTM), which filed its rules one year ago, should be registered as soon as possible, if the legal formalities needed for this purpose have been fulfilled.

(g) The Committee requests the Government to indicate the grounds for closing down operations at the Universal Textiles Factory a move which, according to the complainants, was intended to destroy the trade union.

(h) The Committee once again requests the Government to send its observations on the alleged attack on the headquarters of the San Carlos University Workers' Union by National Army troops, the serious damage caused and the seizing of trade union documents."

An annex followed, containing the names of 74 persons who, according to the complainants, had disappeared or been murdered between 1980 and 1985.

&htab;238.&htab;In its communication of 17 September 1986 the Government states that the competent authorities have taken due note of the conclusions and recommendations of the Committee on Freedom of Association as set forth in the 244th Report, and in particular of the conclusion in which the Committee observes that some of the allegations in question were made in 1983. In that connection, the Government points out that the authorities provided a reply on 28 August 1985, as stated in paragraph 508 of the 241st Report, to the effect that all cases of alleged violation of freedom of association had been passed on to the Ministry of the Interior with instructions to transmit to the Committee any information that might come to light as a result of its inquiries.

&htab;239.&htab;With regard to the more recent allegations summarised in the Committee's 244th Report, concerning in particular the demonstrations held in August and September 1985 in protest against price increases; strikes; the alleged arrest of Francisco Gonzales Moya, a member of the National Council of National Education; and the kidnapping for several hours, on 5 February 1985, of the Financial Secretary of the Central Trade Union of Municipal Workers, who was said to have been subjected to brutal treatment in order to make him give up his trade union functions, the Government states that the persons concerned have made no complaints or protests to the competent authorities.

&htab;240.&htab;With regard to the trade union situation of teachers, municipal workers and the workers of the Universal Textiles Factory, and in particular the allegations that teachers' trade union organisations have been prohibited except for the only trade union organisation of teachers allowed to function, that the Central Trade Union of Municipal Workers (SCTM) has been denied registration and that the Universal Textiles Factory has been closed down with the deliberate intention of destroying the trade union of that undertaking, the Government states that the trade union organisations to which these categories of workers belong are carrying on their usual activities and have made no complaints or protests to the competent authorities.

&htab;241.&htab;With specific reference to the municipalities of Guatemala City, the capital, and Mixco, which are said to have taken reprisals, in the form of murders or dismissals, against workers seeking to organise, the Government adds that no complaints have been made to the competent authorities concerning the facts alleged. According to the Government, the organisations of the workers of these two municipalities are carrying on their activities normally within the framework of labour relations and of the autonomy conferred on them by the Constitution. The two organisations of workers in question are not, incidentally, affiliated to the federal organisation mentioned by the complainants, i.e. the Central Trade Union of Municipal Workers (SCTM).

&htab;242.&htab;The Government specifies with regard to the Universal Textiles Factory that, according to the competent authorities it has consulted, the plant was closed down, not for trade union reasons, but for economic reasons.

&htab;243.&htab;Returning to the question of the Central Trade Union of Municipal Workers (SCTM), which according to the complainants' communication of 17 February 1986 had been denied registration more than one year after depositing its rules, the Government likewise states that no complaint has been made to the competent national authorities. In that connection, it observes that the rules of the trade union organisation in question refer to Guatemala City as the legal domicile of that trade union body and provide that the trade union leaders shall be elected every two years. According to the Government, however, the leaders' last term of office expired in 1981; in 1983 and 1985 it was not informed of the holding of elections for new trade union leaders, and it was a matter of public knowledge at the date of the Government's reply that that trade union organisation had been left without legal representatives and that its activities had been suspended. The Government points out in general terms in that connection that employers' and workers' organisations are required to respect the law of the land as provided by Article 8 of Convention No. 87.

&htab;244.&htab;The Government adds that the Constitution of Guatemala which entered into force in 1986 guarantees the application of the rights and freedoms defined in Conventions Nos. 87 and 98; that workers and employers have the right to exercise them in defence of their economic and social interests; and that the authorities, including the competent courts, are performing their constitutional duties within the framework of a State based on law. According to the Government all persons, including organisations covered by Conventions Nos. 87 and 98, can exercise their constitutional rights in conformity with the Constitution and the laws of the Republic.

&htab;245.&htab;In conclusion the Government states that it would be grateful if the Committee would include the foregoing observations in its final conclusions.

&htab;246.&htab;In Case No. 1195 ICFTU alleges in a telegram of 12 March 1987 the death of Manuel de Jesús López Morales of the Electricity and Energy Trade Union, whose body had been found mutilated and covered with obvious marks of torture. The victim had been kidnapped a few days earlier by persons unknown. In addition, the trade unionists Júlio Martínez and Ricardo Bonilla of the Unified Trade Union Confederation of Guatemala (CUSG), affiliated to ICFTU, were said to have received death threats.

&htab;247.&htab;In its communication of 23 March ICFTU furnishes detailed information on the foregoing allegations, indicating that the murders of certain trade union leaders were brought to its knowledge on 30 November 1986. Specifically ICFTU claims that the facts are as follows:

- on 12 June 1986 Benjamín Borja Leonardo, a welder aged 35 years, is said to have disappeared while he was organising a trade union in Hoppy S.A., a banana company owned by Gustavo Anzueto Willman, a retired colonel;

- on 21 June 1986 Gerardo Asañor Letona, a gardener in the Service Department of the Faculty of Science of the National and Autonomous University of San Carlos, is said to have been detained; his fate remains unknown; - in October 1986 Emilio Benítez, leader of the Welders' Trade Union, is said to have been pursued by paramilitary groups who broke into his home and, not finding him there, expressed the intention to murder him;

- in rural areas armed civilian groups are said to continue terrorising the peasants on the pretext that they are suspected of opposition sympathies; the victims and their families are said not to be making this public for fear of reprisals.

&htab;248.&htab;Furthermore 62 trade unions organised by an organisation affiliated to ICFTU are said to be waiting to receive legal personality from the Directorate-General of Labour.

&htab;249.&htab;In addition the Guatemalan Institute of Social Studies and Training is said to be recruiting 1,170 educators for organising and educational duties among the workers of town and countryside; their wages are to be paid by the Ministry of Urban and Rural Development. The purpose of this measure is said to be to recruit state-paid educators in order to establish an official trade union confederation, as is said to be proved by an unsigned memorandum circulated to Christian Democrat deputies on 10 June 1986.

&htab;250.&htab;Again: at the Guatemalan undertaking GUATEL, Mario López Estrada, the manager, is said to support a body called the "22 February Committee" led by Raúl Rodríguez, a member of the above-mentioned Institute. This committee is said to be a parallel organisation to the lawful trade union already present in the undertaking.

&htab;251.&htab;In other instances, workers are said to have been subjected to measures of intimidation. Thus Pascual Ruch Hernández, general secretary of the Trade Union of Workers of San José Nacahuil, is said to have been taken in for questioning by uniformed police without a warrant on three occasions. Luis Antonio Morán, general secretary of the Bran Canhuaco Rural Trade Union, is said to have been brutally beaten by a person in plain clothes during a union meeting and the complaint filed with the authorities against the attacker, who was identified, is said to have produced no result. The workers of "Los Diamantes" ranch in the Department of Escuintla are said to have reported threats uttered by the manager, who is said to be preventing them from establishing a trade union.

&htab;252.&htab;Lastly four persons are said to have been murdered: Edgar de la Paz, aged 28 years, a railway employee and a member of the Railway Trade Union, kidnapped by a group of civilians who are said to have tied him to a tree, sprinkled petrol over him and burned him; María Luisa Recinos Satoj, a eacher aged 39 years, found dead after a week in captivity on a ranch at Siquinala, Department of Escuintla; an unidentified woman whose body is said to have been found bound hand and foot and bearing signs of torture and mutilation and who according to witnesses had been a manual worker; and a member of the Central Trade Union of Municipal Workers who died after being savagely beaten by persons unknown.

&htab;253.&htab;In its reply of 27 April 1987 the Government categorically denies the existence of armed civilian groups threatening the peasants in rural areas. It states that no official complaints have been made to that effect. The Government affirms in the democratic process now under way, no one is subjected to persecution, and especially not sympathisers of opposition political groups.

&htab;254.&htab;More specifically it states with regard to Emilio Benítez, leader of the Welders' Trade Union, who according to the complainants had been persecuted by paramilitary groups, that in the absence of a definite date and of a complaint it can institute no inquiries.

&htab;255.&htab;With regard to the charges of denial of legal personality to certain trade unions, the Government transmits a list of the unions which have been recognised in 1987 and of those awaiting the signature of the Office of the President of the Republic. It adds that it will transmit as soon as possible a list of the associations in process of approval and an indication of the statutory conditions which they have not yet met.

&htab;256.&htab;With regard to the charge concerning the alleged establishment of an official trade union confederation on the pretext of organising and educating the workers of town and countryside, the Government expresses concern at such misinformation and at the bad faith of the informants of international organisations. It explains that in reality the Ministry of Development has indeed recruited 1,170 rural and urban educators belonging to a community development association, a non-profit, non-governmental organisation specialising in vocational training and in the endeavour to attain even levels of development. The aim of the educators in question, however, according to the Government, is to support communal organisation in order to establish local development boards as part of the new structure at regional and local level. These local development boards are to work directly in agreement with the National Board of Urban and Rural Development, which will bring together those who function as decision-makers at the local level. It is therefore absurd to imagine that the human resources in question, for whose training the Ministry of Devlopment is responsible, are intended to set up an "official trade union confederation". The Government asks the Committee not to let itself be misled by the information given in the memorandum, which has nothing genuine about it.

&htab;257.&htab;As to the charge concerning the alleged parallel trade union set up in the GUATEL undertaking, the Government states that ICFTU has submitted no evidence to warrant the assertion that the manager of GUATEL has supported the establishment of a committee parallel to the lawful trade union of the undertaking.

&htab;258.&htab;With regard to the alleged measures of intimidation to which workers are said to have been subjected in the pursuit of their trade union activities, the Government states that, in the absence of exact dates for the alleged events, it is practically impossible for it to pin down the information covered by the complaints.

&htab;259.&htab;Lastly, with regard to the alleged murders of trade unionists, the Government communicates the following information:

- Edgar de la Paz, who according to the complainants was 28 years old and a railway employee, is said to be in reality Edgar Paz Tello, a worker in the area of the Permanent Way, and to belong in reality to the Rural Workers' Union. According to the Government, the man himself stated in the national press that on the morning of 29 November, when he was drunk and had fallen asleep on the public highway, thieves robbed him of a cheque for 100 quetzales and his driving licence. They then sprinkled petrol over him and set fire to him. In a fainting condition, he claims, he was taken by several persons to the Guatemalan Institute of Social Security, where he was given treatment and then sent home;

- the teacher María Luisa Recinos Satoj, who according to the complainants was 39 years old, was apparently not a primary school teacher but an employee of "Las Américas" bar at Escuintla. According to the bar owner, the person concerned went out on 25 November 1986 to take part in a celebration in the town recreation hall. On 26 November Mrs. Recinos Satoj's body is reported to have been found at the San Antonio La Ceiba ranch, 158 km from Escuintla. The lady's lover, who is said to have threatened her on several occasions and who was wanted by the police, is understood to be suspected of the crime. The Government emphasises that the information obtained proves that the victim did not belong to the Teachers' Trade Union of Guatemala and that she had not been held captive for a week; it affirms that the crime was one of passion;

- with regard to the other cases mentioned by ICFTU, the Government states that, in the absence of exact information, it cannot check the accuracy of the complaints.

&htab;260.&htab;With regard to Justo Rufino Reyes, a member of the Trade Union of Municipal Workers, who according to the Government was murdered on 23 July 1986, the police discovered in the course of its investigation that the victim had offered certain persons jobs in the markets of the capital in exchange for money. Since apparently he kept none of his promises and did not return the money, those whom he cheated are suspected of having hired a killer to murder him. Still according to the Government, it should be noted that the victim died of stab wounds in the neighbourhood of one of the markets in the capital.

&htab;261.&htab;With regard to the case of Manuel de Jesús López Morales who, according to the Government, had just joined the Electricity and Energy Trade Union, who held no office in that Union and whose body was discovered on 7 March 1987, it has apparently been established that the victim was collaborating with a network of drug traffickers. His death, like that of the person discovered near him, is understood to have been the outcome of vengeance and the settling of accounts between different gangs operating in the country. According to the record, the bodies showed no sign of torture but were in an advance state of decay, and predators had begun gnawing them.

&htab;262.&htab;In conclusion the Government states that it will continue to keep the Committee informed about the trade unions not yet recognised and the cases under investigation, and it reaffirms that all cases will be examined by the ad hoc commission established by the President of the Republic.

&htab;263.&htab;The Committee takes note of the information and observations communicated by the Government on aspects of cases antedating the change of regime and the entry into force of the new Constitution dated January 1986. It also notes that the new Government has replied in detail, on 27 April 1987, to the allegations of ICFTU dated 12 and 23 March 1987.

&htab;264.&htab;The Committee is bound to note with regret, however, that the Government has not replied, or has replied only partly, to the allegations of fact put forward by the complainants in the complaints submitted before the change of régime that took place in Guatemala in 1986.

&htab;265.&htab;With regard to the deaths and disappearances of trade unionists that occurred before 1986, the Committee regrets that the Government has not provided more specific information on the circumstances surrounding the deaths of many trade unionists whose names are given by the complainants and on the fate of those trade unionists who have disappeared, in some cases many years ago. The Committee can only reiterate its previous conclusions on these points and once again urge the new Government to do its utmost to determine by judicial investigation what has become of the missing persons, to bring the facts to light, to determine who is to blame, and to punish those guilty of the violent death of trade union militants and leaders.

&htab;266.&htab;With regard to the further allegations concerning the trade union situation of teachers, municipal workers and workers of the Universal Textiles Factory, the Committee observes that the complainants' version and the Government's version of the facts concerning those workers are mutually contradictory. The Committee notes that the Government states that the trade union organisations to which these categories of workers belong are carrying on their activities normally, that the Universal Textiles Factory has been closed down for economic reasons and that the Central Trade Union of Municipal Workers (SCTM), which claimed that its rules had not been registered after a period of more than one year, had on the contrary ceased motu proprio to elect its trade union leaders as long ago as 1981 and since then had been without legal representatives, its activities being suspended.

&htab;267.&htab;With regard to Case No. 1195 and the various allegations made by the ICFTU, the Committee notes that the complainants' version and the Government's version are mutually contradictory. The complainant maintains that several trade union leaders have suffered violent death or death threats, that the Government is installing an official trade union organisation composed of educators paid by itself, and that a great many trade unions are waiting in vain for legal personality. The Government maintains, on the contrary, that the inquiries made have revealed that the persons who have died did not die for having pursued trade union activities but fell victim to common law crimes. The allegation that a so-called official trade union organisation is being set up is held to prove the bad faith of the informants of international organisations because, according to the Government, the function of the educators belonging to the Community Development Association, who are indeed paid by the Government itself, is to improve vocational training and endeavour to attain even levels of development, and not to set up an official trade union organisation. Lastly, with regard to the acquisition of legal personality by trade unions in process of formation, the Government states that several trade unions have acquired legal personality in 1986, others are awaiting the signature of the Office of the President of the Republic and still others are in process of approval. On this last point, the Committee notes the Government's statement that it will continue to keep the Committee informed of the action taken on the registration of those trade unions which have applied for it.

&htab;268.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) With reference to the deaths and disappearances of trade unionists that occurred before 1986, the Committee cannot but urge the Government once again to do its utmost to determine by judicial investigation what has become of the missing persons, to bring the facts to light, to determine who is to blame and to punish the guilty. It requests the Government to keep it informed of all developments in this matter. (b) With reference to the allegations put forward by ICFTU in March 1987 in Case No. 1195 concerning the death of several trade union leaders, the Committee notes that the information supplied by the Government and complainants is contradictory.

(c) With reference to the difficulties encountered by certain trade unions in registering their legal personality, the Committee points out that, if the conditions for the granting of registration are tantamount to obtaining prior permission from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87. The Committee therefore requests the Government to continue to keep it informed, as it has undertaken to do, of the action it has taken on the applications for registration submitted by trade unions.

&htab;269.&htab;The Committee examined this case on two previous occasions [see 239th Report (May 1985), paras. 259 to 275, and 243rd Report (February 1986), paras. 419 to 446]. On the first occasion, the Committee had not received any information or observations from the Government, despite an urgent appeal from the Committee; the second examination of the case took place after the direct contact mission requested by the Government with a view to resolving the trade union problems arising from several complaints against Honduras, had visited the country and submitted its report. The only question left unresolved after the most recent examination of the case concerns the situation of teachers who were dismissed following the strike of 1982; the Government had sent detailed information in this respect, but the Committee was awaiting a report from the non-recognised executive committee of the Professional College for the Advancement of Teaching in Honduras (COLPROSUMAH). To date, this report has not been received.

&htab;270.&htab;In a communication of 18 February 1986 the WCOTP presented a number of additional allegations, enclosing a communication from the COLPROSUMAH and several articles from the Honduran press. The WCOTP sent further information in communications dated 6 March, 23 May and 4 November 1986.

&htab;271.&htab;The Government of Honduras sent its observations in communications dated 20 March, 2 May and 5 November 1986, and 9 March 1987.

&htab;272.&htab;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).

&htab;273.&htab;In its communication of 18 February 1986, the WCOTP alleges that on 11 February some 300 members of the genuine COLPROSUMAH trade union, led by their president, Mrs. Rosario Avila de Dominguez, peacefully reoccupied the "Casa del maestro" (the COLPROSUMAH headquarters in Tegucigalpa), which had previously been taken over by a dissident group of teachers with the support of the former Honduran Government. The WCOTP reports that the "Casa del maestro" was again taken over at 2.30 a.m. on 14 February, by the unlawful dissident group of teachers, under the leadership of Mr. Pablo Portillo, a senior official of the Ministry of Education with the assistance of para-military personnel. It adds that 25 masked and heavily armed persons violently assaulted the premises, injuring several members of the genuine COLPROSUMAH, one of whom very seriously; Professors Luis Alonzo Cartagena, Adalid Ramos, Victor Cache Morales and Nicolas Romero Santos, a trade union employee, were seriously injured, while Professors Rául Mejía, Ramón Vallecillo and Margoth Mejía were savagely beaten. These facts were confirmed by several eye-witnesses and by the press.

&htab;274.&htab;The WCOTP sent additional information on 6 March 1986, including a copy of a letter from the COLPROSUMAH's genuine executive committee to the head of the Honduran armed forces denouncing the events of 14 February undertaken by heavily armed individuals, some of which belonged to the State's security forces, and requesting that the matter be thoroughly investigated.

&htab;275.&htab;In its communication of 23 May 1986, the WCOTP describes the trade union situation of teachers in Honduras. The complainant organisation states that the COLPROSUMAH "group" recognised by the Government does not represent the country's teachers; nevertheless, this group has appropriated the premises and property of the trade union and, in accordance with a government decision, it receives the proceeds of trade union dues and controls the teachers' pension fund; in other words, it has complete control over the entire structure set up by teachers in Honduras over the years. The WCOTP alleges that the non-recognised COLPROSUMAH group is the genuine representative of Honduran teachers, a criterion which it substantiates by citing the fact that 300 delegates from 78 of the trade union's 89 locals were represented at the most recent congress (December 1985) and that, in spite of this, the democratically elected executive committee has access neither to the trade union's premises nor to its assets and property. Lastly, the complainant informs the Committee that the dispute was submitted to a court which ruled in favour of the smaller, government-supported group.

&htab;276.&htab;The latest communication received from the WCOTP is dated 4 November 1986; it states that the Government has yet to recognise the genuine COLPROSUMAH trade union. Instead, it has recognised a small group of persons who are clearly pro-government and who were organised by the former government of Mr. Suazo Córdoba; according to the complainant organisation, this constitutes a violation of Article 2 of Convention No. 87. The WCOTP reports that the genuine COLPROSUMAH was implicitly recognised on 16 July 1986, when the Minister of Education granted special leave for trade union activities to three trade union leaders, in accordance with section 71 of the COLPROSUMAH organic Act, which was subsequently repealed on 16 and 17 September 1986; the WCOTP encloses copies of these letters in its communication. The WCOTP further states that on 29 September 1986, the President of the Republic of Honduras signed Decision No. 4764-EP-86, which called for the creation of a working party to consider wage increases for 1987; it adds that a representative of the genuine COLPROSUMAH was appointed to the working party, and that this constitutes an implicit recognition by the Government of the majority group of teachers. None the less, the WCOTP points out that when the working party's conclusions were published, the signature of the above-mentioned representative was replaced by that of Mr. Roberto López Tinoco, a representative of the government-supported minority group, although he had not participated in the working party's negotations or discussions. This situation prompted the other trade unions involved in the working party (COPRUM, COPEMH and PRICPHMA) to issue a formal protest in a joint statement of 8 October 1986, a copy of which is attached to the WCOTP's letter.

&htab;277.&htab;In its letter of 2 May 1986, the Government of Honduras recognises that the events described by the WCOTP did in fact occur, but adds that the central Government was not involved. Nevertheless, it states that the National Congress appointed a commission of inquiry to establish the facts and the root causes of the schism in the teachers' movement. The Government assures the Committee that it will keep it informed of the Commission's findings. In conclusion, the Government states that it has no intention to interfere in the affairs of trade union organisations, and that it hopes that an extraordinary congress of all teachers will succeed in settling COLPROSUMAH's internal conflict.

&htab;278.&htab;On 5 November 1986 the Government informs the Committee that the Ministry of Education appealed to the interested parties to resolve their differences in a peaceful manner. In this connection, the Government suggests that the above-mentioned commission of inquiry should help in finding a solution, and that the plebiscite it proposed might clarify the situation and allow all persons in the teaching profession to express their opinion; however, the members of the so-called genuine executive committee have proved intransingent and have not accepted this proposal. The Government adds that the National Institute of Teachers' Welfare (INPREMA) suspended the COLPROSUMAH's representation by means of resolution No. 324 (III) on 18 February 1986; this decision was appealed before the First Court of Appeals which, in a judgement of 23 April 1986, unanimously and without reservation recognised Professors Roberto López Tinoco and Idalia Portillo de Zelaya as the organisation's lawful representatives for the period 13 December 1984-13 December 1986; at the same time, the court overturned the resolution of 18 February. The Government states that the President of the Republic has made every effort to promote a settlement to the dispute so far as circumstances allow; on 29 September 1986 he signed Decision No. 4764-EP-86 appointing a working party to study, analyse and propose alternatives concerning the general wage increase for 1987 for teachers connected with the Public Education Secretariat; this working party is made up of the lawful representatives of teachers' organisations, including the COLPROSUMAH. The Government states that this working party was successful in negotiating an agreement signed by the Government and teachers' representatives on 8 October.

&htab;279.&htab;In its last communication of 9 March 1987, the Government informs the Committee of recent developments in the case which, according to the Government, took place in a climate of harmony and freedom, without any interference whatsoever. In accordance with the COLPROSUMAH's by-laws, elections were held on 21 February 1987 to appoint the organisation's new leaders for the next two-year period. Owing to their differences, the "genuine" faction and the "democratic" faction elected their respective representatives unilaterally. In order to obtain official recognition and the legitimacy of the committees so elected, each of the factions appeared before the COLPROSUMAH's tribunal, which, in accordance with the organisation's internal regulations, was responsible for settling the dispute. The Government encloses a certificate dated 25 February 1987, issued by the President and the Secretary of Internal Affairs of the democratic executive committee, which lists the names of persons belonging to the COLPROSUMAH's executive committee, tribunal and administrative committee as at 13 December 1986.

&htab;280.&htab;Two questions were raised when the Committee examined this case at its May 1985 and February 1986 meetings. The first, concerned allegations that the Government had interferred in the by-laws of an organisation and in the election of trade union leaders through the adoption of an Act of 1983 concerning the by-laws of the teachers' organisation, the COLPROSUMAH. The Committee firmly noted that in ratifying Convention No. 87, the Government had agreed to allow workers' organisations the right to formulate their by-laws and administrative regulations and to elect their representatives freely. Thus, the Committee requested the Government to indicate the measures it envisaged to repeal the provisions of national legislation which were incompatible with the Convention, and to allow the organisation in question to formulate its own by-laws, in accordance with Article 3 of Convention No. 87. The second question concerned the non-reinstatement of 31 teachers identified by name, who had been dismissed following a strike in 1982. The Committee considered that these dismissals, which were based on strike activities, constituted a serious case of discrimination in employment on the basis of lawful trade union activities, and a violation of Convention No. 98, which Honduras has ratified. It urged the Government to indicate the measures it envisaged to obtain the reinstatement of the dismissed teachers. The Committee adjourned its examination of these allegation pending receipt of a detailed account concerning the situation of the dismissed teachers from the non-recognised executive committee of COLPROSUMAH. However, the Committee has not yet received this information.

&htab;281.&htab;In the light of the new allegations, the Committee notes that the dispute between the two factions of the COLPROSUMAH, in other words between the so-called "genuine" committee and the so-called "democratic" committee, which can be traced to the 1982 strike, has not yet been settled.

&htab;282.&htab;In the first place, the Committee notes with regret that this dispute degenerated into violence when the executive committee recognised by the Government sought to regain possession of the COLPROSUMAH premises following their reoccupation by the non-recognised executive committee. The Committee notes that according to the complainant organisation, the assault was carried out at 2.30 in the morning: the circumstances surrounding this attempt by a faction which sees itself as legitimate, to recover the premises which it considers legally to be its own, appears to the Committee to be significant. The Committee notes that the allegation that the armed commando was led by a senior official of the Ministry of Education was not contested by the Government, but on the contrary, that it prompted the National Congress to appoint a commission of inquiry to examine the facts and the causes of the schism in the representation of teachers. Nevertheless, the Committee notes that the plebiscite proposed by this commission with a view to clarifying the situation and giving all teachers the opportunity of expressing their opinion, was spurned by the non-recognised executive committee. The Committee regrets that the parties are hardening their positions, since it would appear that the only way to resolve this dispute is through negotiation and dialogue.

&htab;283.&htab;According to information supplied by the Government in its communication of 5 November, the Committee notes that the legitimacy of the recognised executive committee of the COLPROSUMAH was upheld in court. Nevertheless, the Committee recalls that the legislative foundation of the COLPROSUMAH is its Organic Act of 1983 (Decree No. 170-83), which has been contested by the non-recognised executive committee on the grounds that it was adopted by the National Congress at the request of the executive committee recognised by the authorities, but without the COLPROSUMAH's participation. Consequently, it is the Committee's understanding that any decision, even by the courts, which is based on the application of this text, would not be acceptable to the so-called "genuine" faction of the COLPROSUMAH.

&htab;284.&htab;It appears to the Committee that the Government has shown a sincere willingness to resolve the dispute to the satisfaction of both parties. Thus, the Committee notes that the President of the Republic appointed a working party on 29 September 1986 to discuss wage increases for teachers for 1987; according to the complainant organisation, the non-recognised executive committee participated in these discussions and this represents a de facto recognition of this so-called genuine group by the Government. Nevertheless, according to the complainant, the final document adopted by the working party was not signed by all of the participants, since the only signature on behalf of the COLPROSUMAH is that of Dr. Roberto López Tinoco, president of the recognised executive committee, who is alleged not to have participated in the working party's deliberations. The Committee notes that the Government did not reply to this allegation.

&htab;285.&htab;As regards the current status of affairs, the Committee observes that elections took place on 21 February 1987; it has received information concerning these elections from the Government, but not from the complainants. The Committee notes that, owing to their differences, the two factions held separate elections and that proceedings are now pending before the COLPROSUMAH internal tribunal in order to settle the question of the legitimacy of one or the other of the newly elected executive committees. This situation is a source of concern since the COLPROSUMAH's certificate attached to the Government's letter of 9 March 1987 shows that the tribunal was appointed at the same time and by the same persons as the executive committee. Consequently, the Committee wonders if a dispute concerning such elections can be fairly settled by a body whose authority derives from the same source as that of one of the parties in the case.

&htab;286.&htab;In these circumstances, the Committee considers that the dispute concerns the internal management of an occupational organisation, and that for this reason, does not fall within its competence, unless the Government has interferred in a manner which might affect the exercise of trade union rights and the normal functioning of an organisation [see 217th Report, Case No. 1086 (Greece), para. 93]. As the Committee already observed during its previous examinations of this case, it considers that the Government has in fact interferred in this case by favouring one faction to the detriment of the other, in particular, through the adoption of the COLPROSUMAH Organic Act in 1983, on which the COLPROSUMAH executive committee recognised by the Government bases its legitimacy. The Committee draws the Government's attention to the general principle according to which freedom of association implies the right of workers (and employers) to organise their affairs and activities without any interference on the part of the public authorities. The Committee recognises that the Government is ready to play a role in resolving the dispute, and considers that it could do so without interferring in the affairs and activities of the organisation, for example, by promoting a process of conciliation through mutually acceptable machinery, and also by promoting free elections which would determine the representativity of each of the factions.

&htab;287.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to respect the principle of non-interference by public authorities in the affairs and activities of trade unions, as mentioned above.

(b) The Committee urges the Government to promote impartial and mutually acceptable conciliation procedures with a view to resolving the dispute within the COLPROSUMAH, and to keep it informed of the developments in this respect.

(c) As regards the allegations of acts of violence against the non-recognised executive committee of the COLPROSUMAH, the Committee requests the Government to keep it informed of the outcome of the parliamentary inquiry currently under way into these charges.

&htab;288.&htab;The complaints of the World Federation of Trade Unions and of the International Confederation of Free Trade Unions are contained in communications dated 15 and 21 May 1986, respectively. The Government sent its observations in communications of 5 November 1986 and 9 March 1987.

&htab;289.&htab;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).

&htab;290.&htab;The World Federation of Trade Unions alleges that on 9 May 1986 Government security forces assassinated Mr. Cristóbal Pérez Díaz, a trade union leader affiliated to the Workers' Front in San Pedro Sula.

&htab;291.&htab;The International Confederation of Free Trade Unions (ICFTU) states that Mr. Cristóbal Pérez Díaz was a leader of the Beverage and Allied Workers' Trade Union, and that he was gunned down in front of his home in Tegucigalpa by unidentified civilians. The ICFTU adds that Mr. Cristóbal Pérez Díaz was a member of the trade union committee which was negotiating a collective agreement with the authorities responsible for the Honduran social security, and that he had led the workers' demonstration on May Day. The ICFTU adds that trade union, political and church leaders agree that the killing was motivated by political and trade union considerations.

&htab;292.&htab;In its communication of 5 November 1986 the Government regretfully states that it can shed little light on the death of Mr. Cristóbal Pérez Díaz on 9 May 1986, since the National Investigation Department as well as the Criminal Court of San Pedro Sula are unable to provide additional information as the case is still in its preliminary stages. The Government adds that the unfortunate event occurred in San Pedro Sula, and not in Tegucigalpa.

&htab;293.&htab;In its communication of 9 March 1987, the Government reiterates that it is unable to provide additional information, given the status of the case.

&htab;294.&htab;The Committee deeply regrets the violent death of trade union leader Cristóbal Pérez Díaz on 9 May 1986. On previous occasions in cases involving allegations concerning the death of a trade union leader, the Committee has urged that judicial investigations be held with a view to clarifying the facts, and identifying and punishing the guilty parties. In this connection, the Committee notes that the Criminal Court of San Pedro Sula has instituted proceedings concerning the death of Mr. Cristóbal Pérez Díaz, and that the proceedings are still in a preliminary stage. The Committee expresses the hope that the proceedings will conclude in the near future with the identification of the guilty parties.

&htab;295.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee deeply regrets the violent death of trade union leader Cristóbal Pérez Díaz, and requests the Government to keep it informed of developments in the corresponding investigation and proceedings.

&htab;296.&htab;The Committee has already examined this case at its February and November 1986 meetings, and presented interim reports to the Governing Body. [See 243rd Report, paras. 489 to 554, and 246th Report, paras. 313 to 357, approved by the Governing Body at its 232nd and 234th Sessions (February and November 1986), respectively.]

&htab;297.&htab;Since then, the World Confederation of Organisations of the Teaching Prefession (WCOTP) has sent communications dated 3 December 1986 and 3, 6 and 13 February 1987. The Government provided its observations in communications received at the ILO on 17 February, 22 April and 12 May 1987.

&htab;298.&htab;At the Committee's February 1987 meeting, Mr. Bertil Bolin, Deputy Director General, presented an oral report on the mission he had carried out in Tunisia on 3 and 4 February 1987. At the present meeting the Committee was also informed that the Director-General visited Tunisia from 22 to 25 March 1987. During the course of that mission, the Director-General had discussions with the Prime Minister concerning the trade union situation in Tunisia and met with Mr. Achour at the military hospital in Tunis.

&htab;299.&htab;Tunisia 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).

&htab;300.&htab;The origin of this case concerned a dispute between the Tunisian General Labour Union (UGTT) and the Government of Tunisia over the question of how wages were to be fixed. Subsequently, the dispute broadened and involved matters other than the initial collective bargaining problem and the situation deteriorated considerably following strikes organised by the UGTT and the repressive measures which, according to the complainants, were taken by the authorities, namely requisitioning of striking staff, replacement of strikers by people from outside the service, dismissal of strikers, arrests and prison sentences of workers, bans on trade union general assemblies in undertakings, obstruction of trade union meetings, suspension of the UGTT newspaper, abolition of the check-off system and the detachment of civil servants to the permanent services of the UGTT, the occupation of the premises of the UGTT by interim committees assisted by the police.

&htab;301.&htab;In view of the seriousness of the dispute, a meeting held between the Minister of Labour and the Executive Committee and other officials of the UGTT led to the conclusion, on 4 December 1985, of an agreement which provided for the following: (1) the release of those trade unionists who had been arrested; (2) the reinstatement of dismissed workers; (3) the restructuring of the unions, and (4) the resumption of negotiations on all the questions at issue. However, the complainants were of the opinion that the Government had taken no steps to implement the agreement that had been concluded.

&htab;302.&htab;Finally, new allegations reported the arrest and sentencing to a term of imprisonment of Mr. Habib Achour, General Secretary of the UGTT, and of Mr. Moncef Ben Slimane, General Secretary of the National Trade Union of Teachers of Higher Education and Scientific Research (SNESRS).

&htab;303.&htab;At its November 1986 Session, the Governing Body approved the following conclusions of the Committee:

- The Committee notes the information supplied by the Government concerning the sentencing by the courts of Mr. Achour and Mr. Ben Slimane. Having regard to the contradictions between this information and that supplied by the complainants, the Committee considers that the granting of an amnesty to these persons would assist in reducing tension.

- The Committee recalls that only the development of free and independent organisations and the non-exclusive negotiation with all those involved in the social dialogue, will enable a government to confront its social and economic problems and resolve them in the best interest of workers and of the nation.

- The Committee therefore urges the Government to make every effort to bring about the conditions required to re-establish a trade union situation that respects the principles of freedom of association, and in particular, to implement the agreements signed by the expanded Executive Committee of the UGTT and the Minister of Labour on 4 December 1985. The Committee again requests the Government to keep it informed of all measures taken in this regard.

&htab;304.&htab;In its communication of 3 December 1986, the WCOTP states that Moncef Ben Slimane was sentenced to a new term of imprisonment of six months for having "set up a non-authorised association". According to the WCOTP, this sentence was appealed against on the grounds that Mr. Ben Slimane was not involved in the matter in question. Having served the first six-month sentence, Moncef Ben Slimane was released on 14 November 1986, in accordance with the decision of the Court of Appeals.

&htab;305.&htab;In its communication of 3 February 1987, the WCOTP alleges that on 24 January 1987, 15 trade union leaders were arrested, including Mr. Mohamed Trabelsi, Secretary for International Affairs of the Primary Teachers Trade Union. In its communication of 6 February 1987, the WCOTP states that Mohamed Trabelsi was released along with several trade union leaders, but that others were still being detained.

&htab;306.&htab;In its communication of 13 February 1987, the WCOTP states that two more of the trade unionists who were being held have been released, namely, Mr. Ali Rhomdane and Mr. Kamal Saad. As of 12 February 1987, two trade union leaders were still being held. The WCOTP attaches to its communication a statement made by the "legitimate executive of the UGTT", in which it denounces the process that led to the convening of an extraordinary congress to unify the trade union movement, held on 20 and 21 January 1987. It likewise indicates that limited but widely observed strikes were called in the mining, metallurgical and appliance sectors in defence of employment, recognition of advancements and promotions, the payment of year-end bonuses and the recognition of the UGTT's legitimate structures as the sole representatives of workers. It alleges that these strikes were repressed by means of arrests and dismissals.

&htab;307.&htab;In its communication received on 17 February 1987, the Government states that on 9 September 1986, the Executive Committees of the UGTT and the UNTT announced the merger of their respective organisations within the Tunisian General Labour Union, following the President of the Republic's appeal on 20 January 1986 to trade unionists from all factions to unify the trade union movement within a single, strong, representative and responsible organisation. When presenting the budget to the Chamber of Deputies on 10 December 1986, the Prime Minister referred to the reunification of 9 September 1986 as "evidence of the desire to find solutions to the problems of workers, to work in harmony, to reach agreements that will enable trade unions to play a positive and more important role within undertakings". Moreover, he invited all trade unionists to join ranks within a strong, free and representative organisation.

&htab;308.&htab;Following the Prime Minister's statements, the trade unionists undertook consultations which led, on 19 December 1986, to the formation of a new Executive Committee composed of 18 members representing the various trade union tendencies, including that of the sixteenth congress of the UGTT. Meeting again on 7 January 1987, the Executive Committee confirmed its decision to hold an extraordinary National Congress of the UGTT on 20 January 1987, the anniversary of its creation in 1946 by Farhat Hached, and decided to call a meeting of the UGTT's administrative committee on 9 January 1987.

&htab;309.&htab;Meeting on 9 January 1987, the administrative committee, "after having learned of the progress made in the trade union reunification, the restructuring of member trade unions and the provisions taken to ensure the success of the UGTT congress, expressed great satisfaction at the progress made in consolidating the trade union movement and approved the decision to hold the UGTT extraordinary congress on 20 and 21 January 1987".

&htab;310.&htab;The congress was held on the above mentioned dates; it culminated the process of the trade union reunification at the executive as well as the rank and file level, and adopted a general motion and a national trade union charter, a copy of which was attached to the Government's communication. The congress elected an Executive Committee composed of 13 members.

&htab;311.&htab;Soon after its election, the UGTT's Executive Committee held consultations with the Government on 26 January 1987. These consultations continued and led on 10 February 1987 to the publication of a press release announcing the establishment of three joint committees:

- committee to examine the recovery of public enterprises experiencing difficulties;

- committee to study the means for improving the income of workers as a function of their enterprise's profitability;

- committee to investigate the situation of workers whose employment had been suspended.

&htab;312.&htab;According to the Government, these high-level meetings between the UGTT and the Government reflect the parties' sincere desire to find appropriate solutions to the questions at hand. In this connection, and prior even to the establishment of the last-mentioned committee, measures had already been taken to reinstate certain dismissed workers; the joint committee is expected to continue this work.

&htab;313.&htab;Lastly, the Government indicated that Moncef Ben Slimane was released in November 1986.

&htab;314.&htab;In its communication received on 22 April 1987, the Government states that all of the trade union leaders mentioned by the WCOTP, and Mr. Mohamed Trabelsi in particular, are at liberty, that no proceedings against them are pending, and that Mr. Trabelsi returned to work on 4 February 1987.

&htab;315.&htab;In its communication of 12 May 1987 the Government states that the Committee set up to examine the situation of those workers who have been suspended and which was created at the time of the joint Government/UGTT meeting on 10 February 1987, has enabled about 100 suspended workers to be reinstated. Other similar measures are under examination in this Committee. In addition, the Government adds that the UGTT, now reunified, will proceed to hold its 18th Congress and renew its basic structures. Three joint Government/UGTT committees have met on several occasions to define the framework within which dialogue can be strengthened in undertakings and to associate the workers in finding appropriate solutions to problems which arise in their undertakings. The social dialogue continues. Two sectorial collective agreements have been concluded, the one concerning private teaching which was signed on 25 March 1987, the other concerning concessionaries for agricultural equipment and civil engineering signed on 30 April 1987.

&htab;316.&htab;The Government also points out that the UGTT participated in the preparatory work for the Seventh Economic and Social Development Plan which permitted it to contribute to the definition of the fundamental development aims and objectives for the five-year period 1987-91. The representation of the UGTT within the Social and Economic Council has also been strengthened. In conformity with the law regulating the Economic and Social Council, the UGTT is represented by six members. However, adds the Government, since it is concerned to reinforce the participation of trade unionists in the work of the Council itself, it has, following consultation with the UGTT, designated four other trade unionists who have been chosen for their competence. These four persons have been exercising important trade union responsibilities within the Executive Committee of the UGTT for many years. Moreover, the Deputy General Secretary of the UGTT has been elected Chairman of the Social Committee of the Council.

&htab;317.&htab;The Government again informs the Committee that no trade unionist is being detained, nor are any the subject of judicial proceedings for trade union reasons. The sentences handed down against certain trade unionists were on account of common law crimes.

&htab;318.&htab;The Government states that it is fully disposed to continue its collaboration with the ILO and the Committee on Freedom of Association regarding any other questions concerning this matter and adds that it is within this context that Mr. Francis Blanchard, Director-General, and Mr. Bertil Bolin, Deputy Director-General, carried out missions to Tunisia.

&htab;319.&htab;The Committee takes note of recent developments in the trade union situation in Tunisia, and in particular of the holding of the trade union unification congress in January 1987. Likewise, it notes that measures have already been taken as regards the reinstatement of certain dismissed workers. The Committee expresses the hope that these measures represent a first step towards the reinstatement of all workers who were dismissed for participating in strikes or other trade union activities.

&htab;320.&htab;As regards the arrest of trade union leaders, the Committee notes that the persons mentioned in the communications of the WCOTP have now been released. Nonetheless, it wishes to remind the Government that the adoption of measures of detention and sentencing against workers' representatives in connection with acts committed in the course of activities related to the protection of the workers' interests endangers the free exercise of trade union rights. [See for example, 217th Report, Case No. 823 (Chile), para. 509.]

&htab;321.&htab;Furthermore, the Committee notes that the Government has provided no additional information concerning the arrest of Habib Achour. The Committee had previously noted that the sentence against Mr. Achour had been handed down within the context of a dispute between the UGTT and the Government. In this light, the Committee again requests the Government to pronounce an amnesty in favour of Mr. Achour.

&htab;322.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to keep it informed of the results of the measures taken in connection with the reinstatement of workers who were dismissed for participating in strikes or other trade union activities.

(b) The Committee draws the attention of the Government to the fact that the detention and sentencing of workers' representatives for acts committed in the exercise of trade union activities endanger the free exercise of trade union rights. (c) The Committee again requests the Government to take measures to grant an amnesty to Mr. Habib Achour. It requests the Government to keep it informed of developments in this regard.

&htab;323.&htab;The Committee has examined this case at its last four meetings, presenting interim reports to the Governing Body. [See 243rd, 244th, 246th and 248th Reports of the Committee, paras. 570-587, 357-383, 381-408 and 494-503 respectively, approved by the Governing Body at its 232nd, 233rd, 234th and 235th Sessions.]

&htab;324.&htab;Subsequently, further observations dated 25 February, 18 March and 29 April 1987 were received from the Government.

&htab;325.&htab;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).

&htab;326.&htab;When the Committee examined the case at its February 1987 meeting, it reached the following conclusions and recommendations concerning the allegations then pending [see 248th Report, para. 503.]:

&htab;The Committee is particularly attentive to and concerned with the grave problems that exist for the exercise of trade union rights in the general climate described by the Government. In this respect, it takes note of the Government's general statements concerning the very delicate situation facing the country and its desire to safeguard the rights of the whole population, including trade union rights.

&htab;The Committee requests the Government to continue to keep it informed of developments relating to the death, disappearance or injury of the trade unionists mentioned in the annex, and expresses the hope that the investigations undertaken will make it possible to determine who was responsible, punish those who are guilty and establish the whereabouts of those who have disappeared. (The annex listed the names of 25 dead trade unionists, 12 who had disappeared and two who had been injured.) &htab;The Committee again requests the complainants to furnish whatever information may be available to them in connection with the alleged deaths of agrarian trade unionists Leonor Marle, Omar Vergara, Solón Lopez and Serafín Herrera and of the physician and trade union leader Gabriel Anchique Gómez, and concerning the disappearance of José Jairo López Cadena, so as to enable the Government to reply with exactitude to those allegations. The Committee also requests the Government to send its observations concerning the pending allegations of interference in trade union activities (the use of tear gas by the Bogotá police against a group of workers of the Croydon undertaking who were on strike; placing of explosives by para-military groups in the headquarters of the Federation of Workers of Valle del Cauca (FEDETAV)).

&htab;The Committee again asks the Government to indicate whether the three workers of the Vianini Entrecanales enterprise mentioned by the complainants (Messrs. Rafael Mauricio Mendoza Aguilar, Pedro Antonio Rodríguez Rojas and Pablo Emilio Leal Cruz) were in fact dismissed and, if so, the reasons therefor as well as the results of any judicial proceedings that may have been instituted with a view to their reinstatement.

&htab;327.&htab;With regard to the alleged police action at the Croydon undertaking against a group of workers who were on strike, the Government states that the persons detained on 20 January 1986 on the occasion of the disturbances which took place (on the public highway, not inside the factory) at the Croydon undertaking's plant were not workers of the undertaking but persons unconnected with it and that they remained in custody from 5 p.m. to 6.40 p.m. on that date, i.e. for one hour and 40 minutes only. There was no uncalled-for interference by the police with the meeting held by the workers of the undertaking in question. The authorities did not enter the factory precinct because the concentration formed in such a way as to obstruct traffic on the public highway, but they were nevertheless obliged to keep traffic moving and to prevent outsiders from using the meeting to cause a breach of law and order.

&htab;328.&htab;With regard to the alleged attacks on the headquarters of FEDETAV at Cali, the Government states that no "bomb" attack on FEDETAV headquarters at Cali was recorded in 1985. On 6 and 20 February of that year, low-powered firecrackers made with black powder exploded in front of other trade union organisations' premises at Yumbo and Cali, injuring no one in either case and causing damage estimated at Colombian $5,000 (roughly US$22). Thus, no attack was made on FEDETAV and the two events that occurred in front of the premises of other trade union organisations do not constitute persecution directed at them, but acts committed by subversive groups to cause terrorism within the working class.

&htab;329.&htab;With regard to the dismissal of three trade unionists from the firm of Vianini Entrecanales, the Government states that the contracts of employment of Mr. Pedro Antonio Rodríguez, Mr. Rafael Mauricio Mendoza Aguilar and Mr. Pablo Emilio Leal Cruz were considered terminated as a result of their participation in the "civil stoppage" of 20 June 1985, which the Government declared illegal by resolution No. 02205 of 16 July 1985. The Government adds that the three persons in question have instituted proceedings for trade union protection in the labour court but that the proceedings are still sub judice .

&htab;330.&htab;Lastly, the Government again supplies information, which is reproduced below, on the progress of proceedings in connection with the death, disappearance or injury of trade unionists:

- Death of Rogelio Sánchez Angel: Inquiries were instituted by the Twelfth Circuit Court of Criminal Investigation, based on the municipality of Apartadó (Antioquia), when the events of 29 November 1985 took place in the locality of Chigorodó. Notwithstanding the investigative efforts made by the examining magistrate, it proved impossible to determine who were the perpetrators of the crime of homicide, and it was therefore necessary, pursuant to article 473 of the Code of Criminal Procedure, to order the provisional filing of the dossier on 3 December 1986 (this measure does not mean that the investigative and punitive action of the State is at an end).

- Death of Hebert Lascarro González, Celso Paternina Rojas and Jesús Flórez: The Ninth Higher Judge of Barrancabermeja (Santander) reported that his office had instituted a criminal investigation against the trade unionists José Antonio Muñoz Poveda and Rogelio Muñoz Poveda for the crime of homicide in the light of events which had occurred in the district of Chucurí on 29 June 1985. On 13 August 1985 the Tenth Court of Criminal Investigation of Chucurí made an order initiating criminal proceedings and later transmitted this for reasons of jurisdiction to the Fifteenth Court of Criminal Investigation of Barrancabermeja, which made a great many inquiries in order to clarify the facts. The Ninth Higher Court of that town issued a warrant for the arrest of the Muñoz Poveda brothers as possible accomplices of those responsible for the death of Mr. Lascarro, Mr. Paternina and Mr. Flórez. However, there were not sufficient legal grounds on which to charge them as accessories to the crime because it had not been satisfactorily proved that they had accompanied the unknown persons who committed it, and proceedings against them were stayed. It has not been possible to this day to identify the actual perpetrators of the offence and the investigation has been closed for the second time but, subject to compliance with the legal requirements, the merits will be reviewed again. There is, however, no evidence in the dossier that Mr. Hebert Lascarro González, Mr. Celso Paternina Rojas and Mr. Jésus Flórez were workers of the Texas Petroleum Company or trade union activists, and it was determined that the first two were last employed as fishermen and the third in agriculture. The inaccuracy and lack of regard for the truth in the complaint are confirmed once again. - Death of Jaime Berrío Cardona: The Seventh Higher Judge of Bucaramanga closed the investigation proceedings which were underway against Ernesto Tabera Rodríguez who had been charged in absentia.

- Death of Pedro Antonio Contreras Salcedo: The Fifth Higher Court of Cúcuta (Norte de Santander) reported that, despite the efforts made to find the perpetrator of the crime, since it had proved impossible to connect anyone with it by taking statements, the provisional filing of the dossier was ordered on 4 February 1987 pursuant to article 473 of the Code of Criminal Procedure (as already explained on previous occasions, this means that, if sufficient evidence subsequently comes to light, the case will be reopened immediately).

- Death of Francisco Javier Correa Muñoz: The Sixth Higher Judge of Medellín (Antioquia) reported that it had not been possible to identify the perpetrator of the crime and that, in view of the time which had elapsed since the start of the investigation, the provisional filing of the dossier had been ordered on 23 June 1986 pursuant to article 473 of the Code of Criminal Procedure.

- Death of Jorge Leonel Roldán Posada: The Fourteenth Higher Judge of Medellín (Antioquia) reported that, although it had not been possible to identify the person responsible for Mr. Roldán's death despite the great efforts made, the proceedings were continuing normally and the investigative activity of the State was being vigorously pursued.

- Death of Héctor Perdomo Soto and José Diomedes Cedeño: The Second Higher Judge of Neiva reported that, despite the strenuous inquiries made by his office in collaboration with the investigative and police authorities under the continuous supervision of the Regional Office of the Government Attorney, it had not been possible to identify the perpetrators of the double crime. Nevertheless, the proceedings will continue normally until those responsible are found.

- Death of Jorge Luis Ospina Cogollo and Oscar Salazar Ospina: According to a report from the Sixteenth Higher Judge of Medellín (Antioquia), the proceedings in connection with the death of the first-named have followed their normal course and it has been impossible to identify anyone as responsible for the crime, although it has been established that four unknown persons were involved; that under cover of darkness they shot Mr. Ospina at about 9.15 p.m. on 3 July 1985 when he was resting; and that, according to statements by employees of "La Petra" ranch, the motive may have been personal revenge. According to the Judge, the victim had signed on as a worker at the ranch six months before his death; he belonged to SINTRABANANO and was not known to have any labour problems. At the time the trade union organisation already mentioned and SINTAGRO were in operation; they had signed satisfactory collective agreements and there was not friction whatsoever between them and the employers. &htab;With regard to the death of Oscar Salazar Ospina, the Sixteenth Higher Judge of Medellín reported that, there again, no success had been achieved in connecting anyone with the crime because the victim had been alone at his home when the crime was committed. It has been established that Mr. Salazar had signed on as a worker at "El Semillero" ranch ten months before his death, that he did not belong to SINTAGRO and that he had no labour problems. In this case nothing whatsoever is known or even suspected about the motives for the crime. Both investigations are nevertheless continuing.

- Death of Ruben Dorío Castaño Jurado: The Tenth Higher Judge of Manizoles (Caldas) stated that during the trial concerning the death of Mr. Jurado, a warrant had been issued for the arrest, on charges of international homicide, of Hernán Londoño Vergara, but this individual has not yet been captured.

- Death of Luis Jesús Leal Guerrero, Victor Manuel Leal and Carmelo Gelves Ortega: On 29 February 1987 the Higher Military Court confirmed the acquittal of the accused and ordered that their temporary release become unconditional.

- Death of Faeriel Alonso Santana Portillo: The 20th Higher Judge of Ocaña (North Santander) stated that it has not been possible to find a new accused in the investigations and that at the moment the second notice of closure, handed down on 6 March, has been communicated to those concerned.

- Death of Jaime Bronstein Bonilla: The Tenth Higher Judge of Popayán (Cauca) stated that, for the third time, his office requested the National Association of Peasants (ANUC) to give the full name and address of the woman known as Gladys N., who was with Mr. Bronstein when he was killed, but that the Union has not supplied any information. In view of the provisions of section 473 of the Code of Criminal Procedure, in the forthcoming days the case will be provisionally closed on the grounds that over one year has passed without any guilty party being found and brought to trial. It again emphasises the complete lack of co-operation of the ANUC authorities.

- Injuries suffered by Heriberto Ramírez Rengifo: On 26 August 1986 inquiries were begun for the purposes of investigating the punishable offence of attempted homicide. Evidence was collected by the Seventh Judge of the Court of Criminal Investigation at Cartago from 28 August 1986 onwards but, despite the efforts made, the searches carried out and the depositions taken, it has not been possible to charge anyone with the offence. The matter has been entrusted to the Seventh Court of Investigation for the collection of further evidence which may help to clarify the facts. - Disappearance of workers of the Malaria Eradication Service (Juan José Buendía Arias, Manuel Fonseca Garzón, Miguel Angel Mejía, Carlos J. Mendoza and Gregorio Ernesto Torres): The relevant investigation was begun on 6 November 1984, on the basis of an information laid by a private citizen, in the Territorial Court of Saravena. The court conducted the preliminary inquiries, collecting statements and depositions from inhabitants of the area. On 8 May 1985 the case was referred to the First Circuit Court of Mixed Jurisdiction of Arauca, which extended the period of investigation for 90 days and instructed the Territorial Court of Saravena to collect evidence. This period was then extended for a further 60 days, all without result. On 1 August 1986, the investigation was extended for a further 90 days and the Twenty-first Court of Criminal Investigation of Saravena was instructed to collect additional evidence, but once again the efforts made to ascertain the whereabouts of those concerned met with no result. Inquiries for the purpose of identifying those responsible for the disappearance of the aforementioned persons are continuing.

&htab;331.&htab;With regard to the pending allegations concerning the death, disappearance or assault on the physical integrity of trade unionists, the Committee notes that all the acts alleged have given rise to criminal proceedings and that the Government has regularly supplied information on the progress thereof, pointing out that some persons mentioned by the complainants were not trade unionists and that in certain cases the provisional filing of the dossier has been ordered because the guilty parties could not be identified. The Committee expresses the hope that it will be possible to conclude those proceedings in the near future and that they will make it possible to identify and punish those responsible for the crimes. The Committee wishes to refer to the general conclusions which it formulated in the present case on a previous occasion [see 246th Report, Case No. 1323, para. 408], and in which it stated that all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions, with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

&htab;332.&htab;Furthermore, the Committee notes that the proceedings for reinstatement of three trade union leaders of the firm of Vianini Entrecanales are not yet completed and that the Government denies that any bombing attacks were made on the headquarters of FEDETAV at Cali in 1985. The Committee likewise notes that, according to the Government, the police intervened on 20 January 1986, not against the workers of the Croydon undertaking who were on strike, but against persons unconnected with that undertaking who were obstructing traffic on the public highway.

&htab;333.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to keep it informed of the results of the proceedings concerning the death or disappearance of trade unionists or assaults upon them.

(b) The Committee requests the Government to keep it informed of the outcome of the proceedings instituted by three trade union leaders in the firm of Vianini Entrecanales.

&htab;334.&htab;The Committee last examined these cases at its February 1986 meeting, in the light of information obtained during a direct contacts mission conducted in El Salvador from 12 to 16 January 1986. [See 243rd Report of the Committee, paras. 366 to 418, approved by the Governing Body at its 232nd Session (February-March 1986).]

&htab;335.&htab;The Committee had already examined Case No. 953 at its meetings in November 1980, November 1981, November 1982, May 1983 and May 1984 [see 204th, 211th, 218th, 226th and 234th Reports of the Committee]; Case No. 973 at its meetings in November 1981, November 1982, May 1983 and May 1984 [see 211th, 218th, 226th and 234th Reports of the Committee]; Case No. 1016 at its meetings in November 1981, November 1982, May 1983 and May 1984 [see 211th, 218th, 226th and 234th Reports of the Committee]; Case No. 1168 at its meetings in May 1983 and May 1984 [see 226th and 234th Reports of the Committee]; and Case No. 1273 at its meeting in November 1984 [see 236th Report of the Committee].

&htab;336.&htab;Since these cases were last examined by the Committee, new allegations have been submitted by the following organisations: the World Confederation of Organisations of the Teaching Profession (5 May 1986), the International Confederation of Free Trade Unions (9 May and 27 June 1986), the World Federation of Trade Unions (14 May 1986) and the United Trade Union Federation of El Salvador (21 June, 1 and 22 July, 8 September, 24 October and 7 December 1986). The Government submitted certain observations in communications dated 29 July, 19 August and 30 September 1986, 6 and 26 January, 6 and 23 February and 10 April 1987.

&htab;337.&htab;El Salvador 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).

&htab;338.&htab;When it last examined these cases in February 1986, the Committee made the following recommendations on the allegations still pending [see 243th Report, para. 418]:

&htab;"The Committee requests the Government to take steps with a view to the opening of an investigation into the alleged homicide of Tomás Rosales (Case No. 953), José Santos Tiznado and Pedro González (Case No. 973), in respect of whom there is no record of proceedings having been opened. The Committee requests the Government to keep it informed of developments concerning the disappearance of the trade union leader Rafael Hernández Olivo (Case No. 973), as well as of the final outcome of the proceedings concerning the wilful homicide of the trade unionists Rodolfo Viera, Mark Pearlman and Michael Hammer (Case No. 1016), indicating whether the investigation has been able to establish who instigated the crime committed by the two defendants (at its meeting in November 1986, the Committee had noted certain information provided by the Government on developments in these proceedings and had requested the Government to continue to keep it informed of the matter).

&htab;The Committee requests the Government to undertake an investigation to determine the whereabouts of the trade union leaders Elsy Márquez and José Sánchez Gallegos, and to keep it informed thereof (Case No. 1168). &htab;The Committee notes that some of the trade unionists mentioned by the complainants are free, and awaits the information promised by the Government concerning another 18 trade unionists whose arrest has been alleged and whose names are listed in paragraph 392 of the 243rd Report (concerning these 18 trade unionists, the Government reported that none of the persons listed is at present imprisoned in any of the detention centres in the country, but that further investigations will be carried out to determine whether they had been imprisoned at some stage in police centres) (Case No. 1168).

&htab;The Committee observes that the Government has not sent observations on the alleged murder of the trade union leader Marco Antonio Orantes. Faced with this very serious situation and while deeply regretting the murder of this trade union leader, the Committee requests the Government to send its observations on this matter, indicating in particular whether any proceedings have been instituted and, if so, their current status (Case No. 1273)."

&htab;339.&htab;In its communication of 5 May 1986, the World Confederation of Organisations of the Teaching Profession (WCOTP) alleges that on 20 April 1986, a group of the armed forces searched the headquarters of the National Association of Educators of El Salvador (ANDES), seizing documents and some of the files of this organisation, including its membership list.

&htab;340.&htab;In communications dated 9 and 14 May 1986, the International Confederation of Free Trade Unions (ICFTU) and the World Federation of Trade Unions (WFTU) alleged, respectively, the murder of José Aristides Méndez, a postal workers' trade union official, on 6 May 1986. The WFTU adds that in spite of the strike of telecommunications workers, started on 15 April 1986 to obtain wage increases after the Government announced a 16 per cent increase in transport costs, the Government continued rejecting the workers' demands, dismissed six trade union officials, suspended a further five for 30 days and harassed those taking part in the strike.

&htab;341.&htab;In a communication dated 21 June 1986, the United Trade Union Federation of El Salvador (FUSS) alleges that on 20 June 1986, the national police seized at their homes the officials of the Union Association of Postmen and Post Office Employees of El Salvador (SUCEPES), Victor Manuel Martínez, Francisco Palacios, José Antonio García Hernández and Julio Rojas. The ICFTU points out in its communication of 27 June 1986 that the arrests and forced entries in question took place without a warrant and, according to the police, were connected with investigations into the murder of Aristides Méndez. The ICFTU points out that on 22 June, Victor Manuel Martínez and Francisco Palacios were released but not the two others who, according to the FUSS, were being tried.

&htab;342.&htab;In its communications of 1 and 21 July 1986, the FUSS alleges the arrest of José Edgardo Gómez (member of STIAMCES), Cecilio Guzmán Pérez, José Leonel Arévalo Morales, Jaime Ernesto Martínez Menjívar (members of the Leather Workers' Trade Union) on 21 June; the arrest of Adalberto Martínez (member of the ANDA Workers' Union) on 23 June; and the arrest of Andrés Valiente (official of the Mechanics' Trade Union) and Andrés Miranda (member of the FUSS) on 27 June. The FUSS also refers to the arrest of Gregorio Aguillón Ventura (official of the Bread Industry Trade Union) on 1 February 1986 by several members of the police (the person concerned was allegedly placed at the disposal of a military court accused of political and related offences). The FUSS also alleges the arrest, on 7 July, of Febe Elizabeth Velásquez (FENASTRAS official) by members of the police; she was released four days later after pressure from the workers. Finally, the FUSS alleges that following the elections in the Textile Workers' Trade Union of Industrías Unidas SA (STTIUSA), the Ministry of Labour, with the intention of dividing the trade union movement, accepted the credentials of an executive committee elected by 40 workers and refused to recognise the executive committee elected by 570 workers.

&htab;343.&htab;In its communications of 8 September and 26 October 1986, the FUSS alleges the arrest of José Antonio Rodríguez (member of the Building Workers' Trade Union), arrested by armed men in civilian clothing on 18 August 1986 whilst he was going to the building firm Bruno Tonze, where he works; it also alleges the arrest, on 4 October 1986, of Daniel Cuéllar (President of the Agua Zarca Co-operative), Santos Ventura (promoter of the Federation of Agricultural Co-operatives of El Salvador - FEDECOOPADES) and Rafael Vásquez (treasurer of FEDECOOPADES, released on 23 October after having been tortured) when on their way to San Salvador to take part in a march organised by the National Union of Salvadorean Workers. Furthermore, the FUSS alleges the murder of Francisco Méndez (member of the Workers' Association of CEL) on 11 October 1986 by members of the army, on the grounds that he was supposedly looting whereas, in fact, he was involved in rescue work. Later, in a communication dated 7 December 1986, the FUSS alleges that on 1 December, the following were arrested by the national police in the city of Nueva Salvador: Celso Antonio Rivas, Etelvina Vásquez, Adela Margarita Navarreta and David Rolando Arias, members of the Federation of Agricultural Co-operatives of El Salvador (FEDECOOPADES); furthermore, on 4 December 1986, Juan Gilberto Durán, an official of the National Trade Union of the Transport and Allied Industries of El Salvador, was arrested in Sonsonate by members of the army.

&htab;344.&htab;In its communication of 6 January 1987, the Government states, in connection with the death of Tomás Rosales (Case No. 953) and the injuries allegedly suffered by Rafael Hernández (Case No. 973), that the judicial investigations carried out at the places where the crimes supposedly took place refuted the fact that these crimes had been committed. As regards the death of José Santos Tiznado and Pedro González (Case No. 973), it was not possible to identify the persons responsible for the crime during the proceedings because of the lack of witnesses.

&htab;345.&htab;The Government adds that the trial for the homicide of José Rodolfo Viera and two North Americans (Case No. 1016) is at present before the Supreme Court of Justice.

&htab;346.&htab;The Government also states that no state security body is aware of the arrests of the trade union officials Elsy Márquez and José Sánchez Gallegos and that investigations are being carried out on the other arrests alleged in Case No. 1168. As regards the allegations concerning Marco Antonio Orantes (Case No. 1273), the Government points out that no security body knows anything about the disappearance or death of the said person, although investigations are continuing in an effort to clarify the situation.

&htab;347.&htab;As regards the other arrests alleged in Case No. 1273, the Government submits the following information in its communications of 19 August 1986, 6 and 23 February 1987:

- José Antonio García Hernández, Victor Manuel Martínez Rodríguez, Francisco Javier Palacios, Virgilio Fuentes Araniva, Julio Hernández Rojas and Concepción Hernández Rojas were arrested on the charge of murdering Aristides Méndez; José Antonio García Hernández and Julio Hernández Rojas were later placed at the disposal of the Fourth Criminal Court (the others were released).

- José Edgar Gómez Guerrero, Cecilio Guzmán Pérez, José Leonel Arévalo Morales and Jaime Ernesto Martínez Menjívar were arrested on 21 July 1986 by soldiers belonging to the Second Infantry Brigade of Santa Ana; on 28 of the same month, they were transferred to the central barracks of the National Guard which, on 7 July, placed them at the disposal of the Fifth Military Examining Magistrate, on the grounds that they belonged to terrorists groups.

- Andrés Valiente: arrested on 27 June 1986 in the area of Colonia La Fortuna, in the main street of the village of Apopa, on the grounds that he belonged to terrorist groups. He was placed at the disposal of the Special Police Magistrate on 30 June 1986.

- Febe Elizabeth Velásquez: arrested by the police and questioned under Decree No. 50, the legislation applying to the suspension of constitutional guarantees in the case of persons accused of committing offences against the legal personality of the State and against international standards. On 12 July, the President of the Republic, as a gesture of the Government's good faith towards the trade union movement, ordered the release of Mrs. Velásquez. - Celso Antonio Rivas Henríquez, Etelvina Vásquez Sánchez, Adela Margarita Navarrete and David Rolando Oliva: arrested on 1 December 1986, at the intersection between Cuscatlán Avenue and Venezuela Boulevard, by members of the national police, since it was known that they were active members of the FPL. Rivas Henríquez was placed at the disposal of the Military Examining Magistrate on 15 December 1986, whilst the others were released on 4 December 1986.

- Juan Gilberto Durán: arrested on 2 December 1986, by the national police of Sonsonate, at 14 Norte Avenue, Barrio El Angel, Sonsonate, since it was known that he was a terrorist; he was transferred to the headquarters of the service in question on 4 December 1986 and released on 5 December 1986.

- Daniel Rosaide Cuéllar: arrested by Military Detachment No. 6 of Sonsonate on 12 October 1986 and transferred to the headquarters of the national police on 23 October 1986; he was placed at the disposal of the Second Military Examining Magistrate on 29 October 1986.

- Rafael Vásquez Fabián: arrested by Military Detachment No. 6 of Sonsonate on 12 October 1986, transferred to the headquarters of the national police on 23 October 1986 and placed at the disposal of the Third Military Examining Magistrate on 29 October 1986.

- Santos Ventura: there is no information on this person, because no record on him has been found during investigations carried out to this effect.

- Francisco Méndez: his name is not on any of the lists of forensic tests, neither is there any information about him. In spite of this, efforts to ascertain his whereabouts are continuing and findings will be communicated in due course.

&htab;348.&htab;As regards the allegation that the registration of the most representative executive committee of the Textile Workers' Trade Union of the Industrías Unidas SA was refused, in its communication of 29 July 1986, the Government states that at first the Ministry of Labour announced a decision on 9 May 1986 in which it refused to register either of the executive committees on the grounds of the irregularities committed (simultaneous existence of both assemblies, attendance of persons who were not registered as members of the trade union at the assemblies, etc.). On 20 May, the representatives of one of the groups requested the registration of the executive committee elected at a second session of its extraordinary general assembly, attended by 110 members, and the registration took effect on 22 May. On 26 May, the other group requested the registration of an executive committee elected on 18 May, but this was dismissed because of the previous registration of the other executive committee and several irregularities such as the submission of unsigned documents. The Government stresses that the injured party has the right to request that the trade union assembly or assemblies be legally declared null and void.

&htab;349.&htab;The Committee notes with concern that since the last examination of the case, the complainant organisations have submitted extremely serious allegations concerning the death and arrest of trade union officials and trade unionists, the searching of the headquarters of a trade union organisation and various actions of interference and anti-trade union discrimination.

&htab;350.&htab;The Committee notes that the trial concerning the murder of the trade union official José Aristides Méndez has been opened and that the presumed authors of the crime have been identified and arrested. The Committee nevertheless notes that in referring to the other two cases, the Government has merely pointed out that the trade unionist Francisco Méndez is not on the lists of forensic tests carried out and that the security forces know nothing about the death or disappearance of the trade union leader Marco Antonio Orantes, although investigations are still under way. The Committee stresses the importance of carrying out a judicial investigation in all cases with a view to elucidating the facts, determining the responsibilities and punishing the guilty parties if it is proven that offences have been committed. Furthermore, the Committee notes that with respect to the alleged murder of Tomás Rosales and the injuries allegedly suffered by Rafael Hernández, judicial investigations carried out proved that crimes of this nature had not been committed. Finally, the Committee notes that it has not been possible to identify the murderers of José Santos Tiznado and Pedro González during the trial conducted to this effect and that the trial concerning the death of Rodolfo Viera and two North American trade unionists (Michael Hammer and Mark Pearlman) is still under way.

&htab;351.&htab;As regards the alleged arrests of trade union officials and trade unionists, the Committee notes the release of Victor Manuel Martínez, Francisco Palacios, Febe Elizabeth Velásquez, Etelvina Sánchez Vásquez, Adela Margarita Navarrete, David Rolando Oliva and Juan Gilberto Durán. As charges against those concerned were dropped and bearing in mind the general grounds for arrest communicated by the Government in some cases against the persons concerned, the Committee draws the Government's attention to the fact that measures of detention which restrict the exercise of trade union rights can give rise to a climate of intimidation and fear prejudicial to the normal exercise of trade union activities [see, for example, 243rd Report, Cases Nos. 1269 and 1273 (El Salvador), paras. 405 and 413] and that when this is connected with activities in the defence of the interests of workers, it constitutes a serious interference with civil liberties in general and with trade union rights in particular [see, for example, 243rd Report, Case No. 1258 (El Salvador), para. 396].

&htab;352.&htab;Furthermore, the Committee notes that the Government pointed out that José Edgar Gómez Guerrero, Cecilio Guzmán Pérez, Leonel Arévalo Morales, Jaime Ernesto Martínez Menjívar, Andrés Valiente and Celso Antonio Rivas Henríquez were arrested and put on trial on charges of belonging to terrorist groups. The Government also mentioned the trial of Daniel Rosaide Cuéllar and Rafael Vásquez Fabián without going into further detail. The Committee requests the Government to give information on this and, in particular, to indicate the specific facts with which all the trade unionists mentioned above are charged so that it might examine the allegations in full knowledge of the facts. The Committee also requests the complainant organisations to supply additional information on the circumstances surrounding these arrests. Finally, the Committee notes that the name of Santos Ventura is not on the lists of detained persons, that José Antonio García Hernández and Julio Hernández Rojas are being detained on the charge of murdering a trade union official and that the Government has not replied specifically to the allegations concerning the arrest of Gregorio Aguillón Ventura (1 February 1986), Adalberto Martínez (23 June 1986), Andrés Miranda (27 June 1986), José Antonio Rodríguez (18 August 1986), and the arrest of the 18 trade unionists mentioned in paragraph 392 of the 243rd Report.

&htab;353.&htab;The Committee also notes that, according to the Government, no public security body knows anything about the arrest of the trade union officials Elsy Márquez and José Sánchez Gallegos. In view of the allegations that these persons are missing, the Committee repeats its request that a judicial inquiry should be carried out to ascertain their whereabouts.

&htab;354.&htab;As regards the allegation that the registration of the most representative executive committee of the Textile Workers' Trade Union of Industrías Unidas SA was refused, the Committee notes the Government's comments, according to which various general assemblies were held one after the other and that, apart from one case, irregularities had occurred. The Committee considers that in the present case it does not have enough information at its disposal to be able to come to a decision on this matter. However, it notes that there is a possibility that there might be grounds to initiate legal proceedings and that this right does not seem to have been exercised.

&htab;355.&htab;Finally, the Committee regrets that the Government has not replied to the allegations concerning the raid of the ANDES premises on 20 April 1986 by the armed forces, who took away documents such as the list of members; it also failed to mention the dismissal of six union officials in the telecommunications sector because of the strike of 15 April 1986.

&htab;356.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee is conscious of the difficult situation that the country is going through; however, it considers it necessary to request from the Government the information referred to below so as to be able to reach conclusions in full knowledge of all the facts raised in the allegations and in the light of the situation prevailing in the country.

(b) The Committee requests the Government to provide additional information on the alleged murders of the trade unionists Francisco Méndez and Marco Antonio Orantes (Case No. 1273), and to carry out a judicial inquiry into this matter. The Committee also requests the Government to provide information on developments in the trials concerning the murder of trade union official José Aristides Mejía (Case No. 1273) and the murder of Rodolfo Viera and the two North American trade unionists, Michael Hammer and Mark Pearlman (Case No. 1016). As regards this last point, the Committee regrets that, despite the time which has elapsed since the murders, a final judgement has not been handed down.

(c) The Committee requests the Government to carry out a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos (Case No. 1168) and expresses the hope that this will ascertain their whereabouts.

(d) The Committee requests the Government to provide additional information on the trade unionists who are still detained and/or being tried, indicating, in particular, the specific facts with which they are charged (Cases Nos. 1168 and 1273). It also requests the complainant organisations to supply additional information on the circumstances surrounding the arrests of those concerned.

(e) The Committee requests the Government to comment on the allegations to which it has not replied, which are referred to in the previous paragraph.

&htab;357.&htab;The Committee has examined this case on three occasions, in February and May 1984 and in November 1985, 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); 234th Report, paras. 585-611, approved by the Governing Body at its 226th Session (May-June 1984); and 241st Report, paras. 551-563, approved by the Governing Body at its 231st Session (November 1985)].

&htab;358.&htab;The Government provided information in a communication dated 29 January 1986, but a document containing the audited accounts of the complainant union which was stated to be attached thereto was not received with the reply, nor has it been received since despite subsequent requests to the Government.

&htab;359.&htab;The Committee adjourned consideration of the case in May 1986 and at its meeting in February 1987 it addressed an urgent appeal to the Government. This was conveyed to the Government in a letter dated 11 March 1987 and repeated in a cable dated 10 April 1987. No further information has been received from the Government.

&htab;360.&htab;Additional allegations were contained in a letter from the complainant dated 31 March 1987, which was communicated to the Government on 22 April 1987.

&htab;361.&htab;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).

&htab;362.&htab;When it considered the case at its session in November 1985, the Governing Body approved the Committee's 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 probibition 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 determination) 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 Secretary-General 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.

&htab;363.&htab;In its communication of 29 January 1986, the Government commences by stating that the Firestone Employees' Council was elected to replace NAAWUL when it was suspended for audit, and that negotiations between the Firestone Company and the Council took place before the conclusion of the collective agreement on 26 November 1983 (which came into force on 2 December of that year).

&htab;364.&htab;The Government continues by stating that no criminal charge of embezzlement has been brought against the Secretary-General of NAAWUL for the alleged misuse of union funds originating from the World Confederation of Labour. A photocopy of the audit of the union's accounts by the Auditor-General of Liberia which is said to be submitted with the Government's reply was not contained therein.

&htab;365.&htab;The Committee takes note of the information received from the Government. It has taken note of the observation concerning Liberia made by the Committee of Experts on the Application of Conventions and Recommendations regarding Convention No. 87, which was repeated in 1987 because no report had been received by that Committee, and also of the fact that the 1986 Report of the Conference Committee on the Application of Conventions and Recommendations referred to the fact that, despite repeated invitations, the Government of Liberia had failed to take part in the discussions concerning Liberia.

&htab;366.&htab;The Committee has also noted that the Government has referred to only two aspects of the recommendations it made in its last report, and that one of the items of information specifically requested has not been received despite repeated requests.

&htab;367.&htab;The Committee must therefore remind the Government that the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow an objective examination, detailed replies to the allegations brought against them ( Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO , 3rd edition, para. 59).

&htab;368.&htab;The Committee notes that no charge of embezzlement has been brought against the Secretary-General of the complainant union, NAAWUL, for the alleged misuse of funds originating from the World Confederation of Labour, although the Government had originally stated that the audit necessary to investigate allegations to this effect was the basis of the measures taken to suspend NAAWUL in November 1982.

&htab;369.&htab;The reply of the Government states that negotiations leading to the conclusion of a collective agreement took place during the period when the complainant union had been suspended, and that according to the Government the Firestone Company Employees' Council was elected to replace it during that period. It would appear to the Committee that in the circumstances the complainant union was effectively deprived of any opportunity to represent its members in negotiations. In this regard, the Committee would draw the attention of the Government to the principles of freedom of association arising from Article 4 of Convention No. 87 and in particular to that which refers to the serious consequences which dissolution of a union involves for the occupational representation of workers ( Digest , para. 486). It is of the view that a period of suspension as long as that in question (nearly two years) could involve consequences as serious in these respects as dissolution, especially as the suspension was in operation during a period involving both elections and negotiations concerning a collective agreement. The Committee would therefore draw the Government's attention to the principle that the suspension of trade union organisations by administrative authority constitutes a serious restriction of the right of workers' organisations to elect their leaders in full freedom and to organise their administration and activities (ibid., para. 487).

&htab;370.&htab;The Committee trusts that the Government will take the necessary steps to give effect to both of the principles cited above, in a manner which will ensure that opportunities are provided in accordance therewith for elections and negotiations to take place in full freedom.

&htab;371.&htab;The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to aspects of this case concerning legislation and its relation to obligations arising from the Conventions on freedom of association ratified by Liberia.

&htab;372.&htab;In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) It regrets that the Government has only dealt with two aspects of the matter referred to in the recommendations contained in its previous interim report concerning this case, and that information specifically requested has not been forthcoming despite repeated requests.

(b) Noting that no criminal charges have been preferred concerning allegations of embezzlement of funds received from the World Confederation of Labour which led to the suspension of the complainant union, NAAWUL, for a period of nearly two years from November in 1982 during which elections and negotiations took place, it trusts that the Government will take all the steps necessary to give effect to the principles of freedom of association arising from Article 4 of Convention No. 87 and especially those designed to ensure that elections and negotiations take place in full freedom.

(c) It trusts that the Government will respond speedily to the new allegations by the complainant which have been transmitted to it.

(d) It draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to legislative aspects of the case.

&htab;373.&htab;The World Confederation of Organisations of the Teaching Profession (WCOTP) originally presented its complaint of violations of trade union rights - on behalf of its affiliate, the Nepal National Teachers' Association - in a communication dated 21 May 1985. It supplied additional information in communications dated 5 July and 8 October 1985, 2 December 1986 and 3 April and 8 May 1987.

&htab;374.&htab;Despite numerous requests to the Government for its observations on these various allegations, no reply was received and the Committee, at its May 1986 meeting, was obliged to examine this case without the benefit of the Government's reply [see 244th Report, paras. 337 to 356, approved by the Governing Body at its 233rd Session].

&htab;375.&htab;Since then, the Committee has addressed a further urgent appeal to the Government for a reply [248th Report, para. 12, approved by the Governing Body at its 235th Session, March 1987]. At the same time, the Committee drew the Government's attention to the fact that it would present a report on the substance of this case at its next meeting, even if the Government's observations had not been received at that date. The Government has not replied to this urgent appeal.

&htab;376.&htab;Nepal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;377.&htab;In its previous examination of this case, the Committee noted that the WCOTP alleged the following: (1) refusal by the authorities to register the Nepal National Teachers' Association (NNTA); (2) refusal by the Minister of Education to enter into negotiations with the NNTA; (3) repressive actions by the authorities, including detention of NNTA leaders, interference in the NNTA second national conference by the police and mass arrests of demonstrating teachers.

&htab;378.&htab;At its May-June 1986 Session, the Governing Body approved the Committee's conclusions contained in its interim report on this case and, in particular the following recommendations:

"(a) The Committee deplores the fact that the Government has not sent its observations on this case in spite of several requests to do so. The Committee has therefore been obliged to examine the case in the absence of these observations.

(b) Given the seriousness of the numerous allegations in this case, the Committee expresses the hope that the Government will do its utmost to ensure that respect for trade union rights of teachers is guaranteed in Nepal.

(c) The Committee trusts that the Nepal National Teachers' Association, which has been applying for registration since early 1980, will be able to plead its case before the courts and be granted registration in the near future.

(d) The Committee draws the Government's attention to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association.

(e) The Committee observes with special concern that various repressive actions were taken by the authorities in retaliation to peaceful trade union activities and requests the Government to inform it of the charges brought against the five trade union leaders who have apparently been detained without trial since March 1985 and of their current situation.

(f) As regards the death of a teacher during police disruption of a teachers' demonstration on 19 May 1985, the Committee expects that a judicial inquiry will be carried out as soon as possible to determine responsibilities; that steps will be taken to punish those responsible and to prevent the repetition of such actions; it requests the Government to keep it informed of the outcome of the inquiry and of other measures taken in relation to these matters. (g) As regards the acts of anti-union discrimination taken by the authorities against teachers over the last few years, the Committee requests the Government to inform it of the current situation of those teachers who were dismissed, demoted or transferred because of their trade union activities or functions.

(h) The Committee hopes that raids on union premises, such as that carried out by the police on 17 May 1985, will not recur and that all union documents confiscated at that time have been returned to their owner, the Nepal National Teachers' Association."

&htab;379.&htab;In its communication of 2 December 1986, the WCOTP alleges that the imprisonment of the General Secretary of its affiliate, the Nepal National Teachers' Association, Mr. Devi Prasad Ojha, has again been extended under the Public Security Act; that, on 27 September 1986, Mr. Ramashis Yadar, a NNTA district executive member was arrested while issuing membership receipts to the teachers; that, on 27 October 1986, the chairman of the Dhannstra District Committee of the NNTA, Mr. Chandeswar Prasad Shingh, was arrested near the NNTA office. The WCOTP adds that while the Minister of Education has been sympathetic towards the registration, reinstatement and release of teachers, and to the formation of an ad hoc committee for teachers, the local administration is allegedly involved in establishing an association parallel to the NNTA at the national level.

&htab;380.&htab;In its communication of 3 April 1987, the WCOTP complains that the Government of Nepal continues to deny registration to the NNTA and refuses to receive delegations from that organisation. It reiterates that the NNTA General Secretary, Mr. Devi Prasad Ojha, is still detained under the Security Act (which legislation permits the issuance of detention orders, valid for nine months and renewable, without stating reasons, preferring charges or bringing the prisoner to trial) and adds that two other teacher unionists - Messrs. Ram Bahadur Thopa, Assistant Secretary of the Syanga District Committee of the NNTA, and Madhar, of the Khavre District Committee - have been held in detention since 1985, in addition to the 7,000 teachers who have been detained for various periods of time - and brutally beaten in some cases - since then.

&htab;381.&htab;The WCOTP alleges that the following NNTA teacher unionists have been killed (it states that dates cannot be given because of uncertainty, mainly due to deficiences in official reports and the difficulty of transcribing from the Nepalese calendar):

- Tanka Bhushal (of the Argha Khanchi District; died after beating by police in his home); - Min Bar Chand (of the Baitadi District; beaten to death in the police station);

- Abikeshar Bharati (of the Jhapa District; found dead outside his village);

- Mahendra Tadav (of the Sirha District; shot in his home by bandits known to be in the employ of a local landlord);

- Suresh Shar Burja (of the Myagdi District; shot by persons known to be regularly employed, for purposes of intimidation, by a member of the legislature);

- Ram Dev Pandit (of the Dhanusa District; became ill in prison and was refused medical attention; released in extremis and died before reaching hospital).

&htab;382.&htab;The WCOTP also supplies details concerning 61 teachers who were allegedly dismissed for having participated in NNTA activities (see Annex I) and 35 teachers who were allegedly transferred for this reason (see Annex II). According to the WCOTP, reports providing numbers but not names show the following total figures, in addition to the above-mentioned dismissed or transferred teachers: 138 dismissed, 80 transferred, 6 demoted and 13 arrested on false charges. The WCOTP also states that intimidation and victimisation of teacher unionists continue.

&htab;383.&htab;According to the WCOTP, after the violent disruption of the second NNTA national conference in 1984 by police attacks, the Government announced its intention of creating a new organisation for secondary teachers only. The Acting President of the NNTA, who had been in detention for six weeks, was released to participate in talks on behalf of the NNTA which, however, rejected the proposal. The WCOTP alleges that in late 1986 the Government proposed the creation of two organisations, one for primary teachers and one for secondary teachers, and invited the NNTA to appoint five persons to an advisory committee to discuss this proposal. The WCOTP states that after these nominations were received, the Government selected 13 more teachers without reference to the NNTA, added two Ministry of Education officials and two Members of Parliament, and appointed a third Member of Parliament to chair the committee. It was allegedly made clear to members of the advisory committee that it must arrive at recommendations acceptable to the Government, and that an acceptable outcome would make it more likely that the General Secretary and his colleagues would be released and dismissed teachers reinstated.

&htab;384.&htab;The WCOTP states that under these pressures and after six weeks of discussion, the Acting President of the NNTA, and the four other members appointed by the NNTA, abandoned the explicit mandate given to them by the Central Executive Committee of their union. On 30 January 1987 they signed a committee report which was accepted by the Government in February, and which: (a) set forth the constitutions of two separate organisations, the NNPTA and the NNSTA;

(b) established a two-level structure for secondary teachers (NNSTA), but deleted the district level for primary teachers, leaving them only the right to elect delegates to a triennial national conference;

(c) provided that dismissed teachers and temporary teachers would be ineligible for membership;

(d) provided that the Government "may" provide funds to the associations.

&htab;385.&htab;The WCOTP states that the Central Executive Committee of the NNTA does not consider this agreement valid and, since its signing, the officers concerned have not participated in NNTA meetings. It stresses that there has been no spontaneous movement on the part of teachers to create separate organisations, although some secondary teachers and head teachers are known to favour the concept. The Minister, moreover, allegedly reported to the press that the NNPTA and the NNSTA were the sole existing teachers' organisations, and that he considered the NNTA to have gone out of existence. The WCOTP states that efforts by local NNTA officers to call meetings to discuss the proposed changes have led to threats of disciplinary action for insubordination and Ministry of Education officials have pressured head teachers to sign declarations of support for the changes. It adds that the NNTA is preparing to convene its third national conference in June 1987, but greatly fears that the Home Secretary will again order the police to disperse the meeting.

&htab;386.&htab;In a communication dated 8 May 1987, the WCOTP states that Mr. Devi Prasad Ojha has been released from detention.

&htab;387.&htab;Before examining the substance of the case, the Committee regrets that it is necessary to draw once again to the attention of the Government of Nepal the considerations it set out in its First Report [para. 31], namely that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and it is confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating, for objective examination, detailed replies to the substance of the allegations.

&htab;388.&htab;The Committee in these circumstances again deplores that the Government has not sent any reply to the serious allegations presented by the WCOTP two years ago and that it has been obliged, because of the time which has elapsed, to examine the case for a second time without being able to take account of the Government's observations or comments.

&htab;389.&htab;The Committee notes that the allegations in this case - including the most recent ones - concern numerous serious violations of the freedom of association of a national teachers' organisation (the NNTA), ranging from refusal to register it through to the continued detention without trial for over two years of eight of its leaders and death of six of its district officers. On this latter allegation it notes that the complainant gives no specific reasons for the deaths apart from pointing out that the six persons involved held office in its district units, and it recalls that in its previous examination of this case it appeared that during anti-union violence led by the police one teacher had been killed, although his links to the trade union in question were not specified.

&htab;390.&htab;Faced with this range of grave allegations, the Committee expresses its deep concern over the situation of the NNTA and urges the Government, after taking note of the following considerations to do its utmost to ensure that respect for the trade union rights of teachers is guaranteed freely in Nepal.

&htab;391.&htab;Turning now to the allegations which have been outstanding for two years and which are amplified in the most recent communications from the complainant, as regards the non-registration of the Nepal National Teachers' Association, the Committee would recall, as it did in its previous examination of this case, that an appeal should lie to the courts against any administrative decision concerning the registration of a trade union; such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration. The Committee once again hopes that the NNTA, which has been applying for registration since early 1980, will be able to plead its case before the competent courts especially given the threat it feels from the February 1987 agreement creating two new teachers' organisations.

&htab;392.&htab;Linked to this question of non-registration during the Committee's previous examination of this case was the complainant's allegation that the authorities refused to meet and negotiate with the NNTA. The Committee notes from the information supplied more recently by the complainant that, at least since late 1986, much discussion has taken place between the NNTA (admittedly through those of its officers who, after signing a report which was not acceptable to the association's full executive, have since not participated in NNTA meetings) and Government representatives. Of more vital concern to the complainant according to its latest allegations is the fact that these talks led to the establishment of two new, allegedly government-controlled, teachers' organisations and the accompanying government coercion to stifle any discussion of, or opposition to, this.

&htab;393.&htab;The Committee has always emphasised in cases such as this that workers should in practice be able to form and join organisations of their own choosing in full freedom. When looking at allegations that the public authorities have, by their attitude, favoured or discriminated against one or more trade union organisations - by means of public statements or the unequal distribution of subsidies or facilities or the refusal to recognise certain organisations - the Committee has stated that any coercion of this kind jeopardises the right of workers to form and join organisations of their own choosing [see, for example, 93rd Report, Case No. 494 (Sudan), para. 333].

&htab;394.&htab;The Committee notes with great concern that the WCOTP's most recent allegations concerning government repression of teachers and in particular NNTA members reflect its previous examination of such serious measures as mass arrests (the WCOTP gives the figure of 7,000 detentions since 1985) and the continued detention without trial, apparently on the grounds of their union affiliation and activities, of eight NNTA officers since 1985 (Yagya Murti Arjal, R.P. Panday, A.P. Sapkota and K.P. Bhattari - all of whom were listed in the Committee's previous examination of this case - and Ramashis Yadar, Chandeswar P. Shingh, Ram B. Thapa and Madhar referred to by the WCOTP in its latest communications). The Committee must once again stress the importance of the principle that the detention of trade union leaders for trade union membership or activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association. Moreover, it again emphasises that one of the fundamental rights of the individual is that detained persons should be brought without delay before the appropriate judge. In the case of persons engaged in trade union activities, this is one of the civil liberties which should be ensured by the authorities in order to guarantee the exercise of trade union rights [see, for example, 236th Report, Case No. 1204 (Paraguay), para. 441]. The Committee urges the Government to inform it rapidly of the charges against these union leaders and of their current situation.

&htab;395.&htab;The third major set of allegations concerns continuing acts of anti-union discrimination taken by the authorities against teachers in their employment (according to the most recent allegations a further 61 dismissals and 39 transfers). In these circumstances, the Committee can only recall once again that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations shall have the right to elect their representatives in full freedom [see, for example, 236th Report, Case No. 1113 (India), para. 130]. It urges the Government to inform it rapidly of the current situation of the teachers who were apparently prejudiced in their employment because of their trade union activities or functions.

&htab;396.&htab;The Committee is particularly concerned at the alleged death of a further six teachers, members of the NNTA, although the complainant has been unable to supply more specific information on the circumstances surrounding these deaths. During its previous examination of this case the Committee already commented on the alleged death of a teacher at the hands of the police and it would repeat its exhortation to the Government that a judicial inquiry be set up to ascertain the facts in full and determine the responsibilities so that steps will be taken to punish those responsible and to prevent the repetition of such actions. It again hopes that such an inquiry will be carried out as soon as possible into all the alleged deaths and requests the Government to inform it of developments in these matters.

&htab;397.&htab;Lastly, the Committee recalls that no information has been forthcoming from the Government on the alleged police raid on the NNTA premises on 17 May 1985, in particular on the Committee's request, made during its last examination of this case, that the papers confiscated at that time be returned to the union.

&htab;398.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee deplores the fact that the Government has not sent its observations on this case in spite of many requests to do so and that the Committee has therefore been obliged, on two occasions, to examine the case in the absence of these observations.

(b) Given the seriousness of the numerous allegations in this case, the Committee urges the Government to do its utmost to ensure that respect for trade union rights of teachers is guaranteed freely in Nepal.

(c) Meantime, the Committee once again hopes that the Nepal National Teachers' Association, which has been applying for registration since early 1980, will be able to plead its case before the courts.

(d) The Committee draws the Government's attention to the principle that favouritism or discrimination in its dealings with unions jeopardises the right of workers to form and join organisations of their own choosing and it urges the Government to inform it rapidly of the current situation of the union leaders who have apparently been detained, dismissed or transferred and of the return of confiscated papers to the union.

(e) As regards the alleged deaths of teacher unionists at police hands, the Committee urges that a judicial inquiry be carried out as soon as possible so that steps will be taken to punish those responsible and prevent the repetition of such actions; it again requests the Government to keep it informed of developments in these matters.

&htab;399.&htab;The Committee examined this case at its November 1985 meeting and presented an interim report to the Governing Body [see 241st Report, paras. 522-550, approved by the Governing Body at its 231st Session (November 1985)].

&htab;400.&htab;Following the examination of this case in November 1985, new allegations were received in communications from the following organisations: the International Confederation of Free Trade Unions (16 December 1985; 30 April, 9 May, 27 October and 3 December 1986; 20, 23, and 25 March and 3 April 1987); the Latin American Central of Workers (23 May and 22 November 1986); and the Workers' Inter-trade Union Movement - Paraguay (16 March 1987).

&htab;401.&htab;The Government sent certain observations in communications dated 19 June 1986 and 9 February 1987.

&htab;402.&htab;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).

&htab;403.&htab;In its previous examination of the case (November 1985), the Committee noted that Mr. Marcelino Corazón Medina (Chairman of the Committee of Agricultural Producers) had been released, and requested the Government to send its observations on the alleged torture of this trade union leader during his detention in September 1985, and to indicate the concrete facts on which his detention was based, as well as observations on the alleged detention of Mr. Sebastián Rodríguez, General Secretary of the Drivers' Union of Line 21, who according to the ICFTU, was still imprisoned in October 1985 after more than 30 days, for the sole reason of having organised a musical festival to raise funds for his unemployed colleagues [see 241st Report, paras. 529 and 550].

&htab;404.&htab;In its communications of 18 December 1985 and 30 April 1986, the ICFTU alleges the detention of trade unionists Concepción Rodríguez, Juan Carlos Páez and Isabelino Cáceres on 11 December 1985, as well as that of José Bellasai, Ursino Barrios, Aníbal Carrillo and Juan Masi, doctors of the Hospital Committee for Clinics, on 25 April 1986, while they were on strike and demonstrating publicly in support of political and socio-economic improvements. On the same day, the police laid siege to the headquarters of the Bank Workers Federation (FETRABAN) to prevent trade unionists from entering the premises. Moreover, the Government banned the activities planned by the Workers' Inter-trade Union Movement (MIT) in commemoration of May Day.

&htab;405.&htab;In its communication of 7 May 1986, the ICFTU adds that on 1 May the MIT had called for a peaceful public demonstration, but that the workers wishing to attend the meeting were violently turned back by the police. The ICFTU states that on 3 May some 150 militants of the Partido Colorado (in the Government) assaulted the physicians and nurses permitted to tend to the wounded; this group, whose access to the hospital was authorised by the police, proceeded to destroy hospital installations. Later, the same group totally destroyed the facilities of Radio Ñandutí (which had allowed workers and their organisations to voice their opinions). These events took place in the presence of the police, who failed to intervene. The ICFTU also requests the unconditional release of the agricultural trade union leader Marcelino Corazón Medina (arrested during the May Day demonstration).

&htab;406.&htab;The Latin American Central of Workers (CLAT) refers to some of the allegations presented by the ICFTU, adding that the judicial authorities, having found no evidence of criminal responsibility, released the doctors who had been arrested during the hospital workers' demonstration of 23 April 1986 (which had been violently repressed). It also points out that the police repression of the May Day commemoration resulted in a large number of injured persons.

&htab;407.&htab;In its communications of 27 October and 3 December 1986, the ICFTU alleges that Herminia Feliciangeli and Benjamín Livieres of the Commerce Trade Union and the Journalists' Trade Union, respectively, were arrested on 24 October. The ICFTU also reports the arrest of Sonia Aquino, a leader of the Journalists' Trade Union, who has disappeared and states that fears are held for her life. On 29 November Carlos Filizzola, a doctor and a leader of the Hospital Trade Union, was arrested in front of his house. In its communication of 22 November 1986, the CLAT states that the above-mentioned Herminia Feliciangeli and Benjamín Livieres were charged with participating in public demonstrations and trade union activities, such as distributing information in the workplace; they have been tried pursuant to Act No. 209 on "defence of the public order and the freedom of persons".

&htab;408.&htab;In its communication of 16 March 1987, the Workers' Inter-trade Union Movement (MIT) alleges that Margarita Capurro de Seiferheld, a leader of the MIT, has been told to resign from her position as philosophy teacher at the National Girls' School, or otherwise face summary administrative proceedings filed by the Ministry of Education and Culture; she was further warned not to contest the charges, since she lives alone and has a daughter whom no one would care for in her absence.

&htab;409.&htab;In its communication of 20 March 1987, the ICFTU alleges that Víctor Báez, General Secretary of the MIT and the FETRABAN, was violently arrested by the police on 18 March, after the headquarters of the FETRABAN had been surrounded by the police for several hours during the course of a meeting of the MIT leaders. In a subsequent communication of 25 March 1987, the ICFTU reports that Víctor Báez was released on 20 March 1987.

&htab;410.&htab;In its communication of 3 April 1987, the ICFTU alleges that Pedro Salcedo, General Secretary of the Paraguay Cotton Company Workers' Trade Union (CAPSA), was arrested the day before the trade union's general assembly. The police prevented this meeting from taking place by roping off the premises and arresting workers as they arrived, although they were later released. The ICFTU adds that the agricultural trade union leaders Marcelino Corazón Medina and Bernardo Tonales were arrested in Ononondivepa while engaged in trade union activities. Lastly, the ICFTU states that Raquel Aquino, a leader of secondary school students, has been arrested since mid-March for sympathising with the trade union movement.

&htab;411.&htab;In its communication of 19 June 1986, the Government states that Marcelino Corazón Medina was released on 3 June 1986.

&htab;412.&htab;As regards the allegations concerning the arrest of Benjamín Livieres and Herminia Feliciangeli, the Government states in its communication of 9 February 1987 that these persons have been released and are free to carry out their activities without any restriction what so ever. They had been tried by the courts on the grounds indicated in the court's proceedings (the Government states that it has sent photocopies of the relevant court documents but these have not been received by the ILO). The Government adds that Mr. Filizzola is currently free, that he was not arrested or detained without contact as alleged by the complainants, but was detained in accordance with court orders based on the procedure in force (the Government states that it has sent photocopies of the relevant court documents, but these have not been received by the ILO).

&htab;413.&htab;In the first place, the Committee expresses its serious concern at the high number of arrests of trade union members and leaders, identified by name, and at the nature of the other allegations relating to the violent repression of peaceful trade union demonstrations, and to the various acts of interference with and violence and pressure against trade union organisations and their leaders. The Committee deplores the fact that the Government has replied only to a limited number of these allegations, despite the time that has elapsed since they were made.

&htab;414.&htab;The Committee notes that, according to the Government, the trade union leaders Benjamín Livieres, Herminia Feliciangeli and Carlos Filizzola were released after the relevant court proceedings were instituted. The Committee observes that the Government states that it has sent copies of the pertinent court documents, but these have not been received by the ILO. The Committee likewise notes that the complainants have reported the release of the doctor trade unionists José Bellasai, Ursino Barrios, Aníbal Carrillo and Juan Masi, as well as that of Víctor Báez, General Secretary of the MIT-P. In these circumstances, since it appears that no charges have been held against these individuals, the Committee must express its serious concern over these arrests, and draws the Government's attention to the principle that measures designed to deprive trade union leaders and members of their freedom, entail a serious risk of interference in trade union activities and that such measures, when based on trade union reasons, constitute an infringement of the principles of freedom of association. [See for example, 233rd Report, Case No. 1169 (Nicaragua), para. 292.]

&htab;415.&htab;Lastly, the Committee notes that, according to the Government, the agricultural trade union leader Marcelino Corazón Medina was released on 3 June 1986. The Committee notes, however, that according to the allegations, Mr. Corazón Medina was again arrested on 1 May 1986 and then again in April 1987, and that the Government has not sent its comments in this respect.

&htab;416.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee expresses its serious concern at the large number of arrests of trade union members and leaders.

(b) The Committee deplores the fact that the Government has replied only to a limited number of allegations, despite the time that has elapsed since they were submitted, and urges the Government to send its observations on all of the serious allegations presented by the complainants concerning the arrest of trade union leaders, the violent repression of peaceful trade union demonstrations and the various acts of interference with, violence and pressure against trade union organisations and their leaders.

(c) In view of the conclusions concerning the arrest of certain trade union leaders, the Committee requests the Government henceforth to keep it in mind that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in union activities and that such measures, when based on trade union reasons, constitute an infringement of the principles of freedom of association.