&htab;28.&htab;The complaint is set forth in a communication from the World Confederation of Organisations of the Teaching Profession (WCOTP), dated 4 November 1986. The Government submitted its observations in a communication dated 22 June 1987.

&htab;29.&htab;Peru 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;30.&htab;The WCOTP alleges that officials of the Single Union of Educational Workers of Peru (SUTEP) were subjected to serious acts of aggression in the Union's local section of the secondary school "Nuestra Señora de Guadalupe" (Our Lady of Guadalupe) in Lima. According to the complainant, on 21 March 1986 three schoolteacher officials of the local section of the SUTEP, Hugo Maguina, Liberato Balcázar and Amador Estrada Peso, were attacked by a group called "disciplinarios apristas" (APRA militants), members of the leading party in Peru. The ex-Secretary-General of SUTEP, César Barrera Bazán, was also attacked and had to receive medical attention in hospital.

&htab;31.&htab;The WCOTP's communication adds that, since then, nine teachers, local SUTEP officials in the secondary school "Nuestra Señora de Guadalupe" have been dismissed. Those teachers dismissed are: Hugo Maguina Molina, Orlando Icochea Vento, Liberato Balcázar, Amador Estrada Peso, Idelfonso Aráoz Cruz, Luis Peláez Pérez, Carlos Reluz Arboleda, Julio Alvarado Medina and Victor Santos Meza. Furthermore, several members of the administrative staff were dismissed or transferred. The school has been "reorganised" by a committee made up by party members and the vacant posts filled by students and members of the leading party.

&htab;32.&htab;Finally, the complainant points out that the above-mentioned occurrences constitute a serious infringement of freedom of association and, in particular, Article 1 of Convention No. 98.

&htab;33.&htab;In its communication of 22 June 1987, the Government states that on 12 November 1985, the Ministry of Education set up a special committee entrusted with studying the problems affecting the national secondary school "Nuestra Señora de Guadalupe". This committee of inquiry reported a breakdown in the working relations between several teachers, the managerial and administrative staff, with consequences that had even been referred to the judiciary; furthermore, the members of the committee of inquiry had also suffered from this belligerent attitude because on 8 December 1985 it was aggressed by a group of teachers, which included Hugo Maguiña Molina, Amador Estrada Peso, Julio Alvarado Medina, Vince Quispe Andía and Orlando Icochea Vento, against whom administrative proceedings were instigated on the grounds that they had obstructed and disregarded the authority of the commission of inquiry.

&htab;34.&htab;The Government adds that the committee, in spite of these difficulties, found that there had been irregularities in the use of the school premises, in the financial administration and in the technical and pedagogical aspect of the teaching, which is why it recommended that the school "Nuestra Señora de Guadalupe" be reorganised.

&htab;35.&htab;The Government notes that, acting upon the recommendation of the committee of inquiry, the educational authorities declared that the above-mentioned teaching establishment was to be "reorganised". To this end, a committee to reorganise the school was set up, composed of nine members and presided over by the teacher Fernando Cabrel Nicho, deputy director of the Educational Zone 01, under whose administration the school is run. It adopted and co-ordinated a series of measures through the education authorities in order to ensure the normal running of the school once again. At the same time, within its own terms of reference, the reorganisation committee made inquiries and gave an account in its final report of the actual situation as regards the teaching dispensed in the training establishment. In view of this final report and given that the reorganisation committee had been aggressed by several of the teachers at the school on 20 March 1985, the Educational Zone acted within its authority and took several measures. Pursuant to the administrative proceedings already under way and in view of the fact that new proceedings were instigated against other teachers concerned, it imposed the following administrative penalties, in accordance with the standards laid down in the Teachers' Act (Act No. 24029) and Legislative Decree No. 276 (Public Administration Act) on public and civil service officials. These involved:

- the permanent removal from office of various teachers and administrative staff, amongst whom were the following teachers: Hugo Maguina Molina, Orlando Icochea Vento, Liberato Balcázar Beramendi, Amador Estrada Peso, Idelfonso Aráoz Cruz, Luis Peláez Pérez (director of the school) and Julio Alvarado Medina. The teachers Carlos Reluz Arboleda and Víctor Santos Meza were transferred to other educational centres, where they are fulfilling the same duties.

&htab;36.&htab;The Government quoted the legal and administrative regulations which authorised the educational authorities to take the measures described above, thereby guaranteeing that the action taken in each case corresponded to identifiable events and standards applicable to such cases, and added that the authorities carried out an inquiry on the alleged events, although the findings were still pending.

&htab;37.&htab;As regards the incident in which the former Secretary-General of the SUTEP, César Barrera Bazán, was injured, the Government points out that this incident occurred with the guardian of the Republican Guard - who is entrusted with guarding the entrance to the headquarters of the Ministry of Education - when the former trade union official and present member of Parliament attempted to enter these headquarters.

&htab;38.&htab;Finally, the Government states that the events as related lead to the conclusion that the complainant's arguments are divorced from reality and the legal aspect of the case, since the measures taken against the teachers were not prompted by political reasons or carried out to the detriment of freedom of association or the SUTEP officials, as alleged.

&htab;39.&htab;The Committee notes the complainant's allegations that there had been an infringement of freedom of association as a result of the dismissal of several teachers and administrative staff of the national secondary school "Nuestra Señora de Guadalupe", several of whom were local SUTEP officials. The Committee notes, however, that the complainant organisation has not provided sufficient evidence in its allegations to support the claim that the dismissal of the teachers and administrative staff constituted an infringement of the trade union freedoms of those dismissed.

&htab;40.&htab;Furthermore, the Committee notes the detailed observations provided by the Government on the reasons which prompted the dismissal of the teachers and administrative staff, in particular on the attacks to which both the committee of inquiry and the committee to reorganise the school were subjected whilst carrying out their duties. Similarly, the Committee notes that the dismissals were partly prompted by irregularities in the running of the teaching establishment discovered by the committee of inquiry and that these penalties were imposed after the educational authorities had instigated administrative proceedings against the teaching and administrative staff in compliance with the standards laid down in the Teachers' Act (No. 24029) and Legislative Decree No. 279 (Public Administration Act).

&htab;41.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body, taking into account the information it has at its disposal, to decide that this case does not call for further examination.

&htab;42.&htab;The International Association of Machinists and Aerospace Workers (IAM) presented a complaint of violations of trade union rights against the United States in a communication dated 16 March 1987. By a letter dated 6 May 1987, the American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) associated itself with this complaint. The Government provided its observations in a communication dated 14 September 1987.

&htab;43.&htab;The United States 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;44.&htab;In its communication of 16 March 1987, the IAM alleges anti-union practices by Norsk Hydro Aluminium Inc. and claims that the United States laws allow companies to hire anti-union consultants for the sole purpose of denying workers freedom of association.

&htab;45.&htab;According to IAM a labour relations consultant of Norsk Hydro stated, before workers joined IAM, that even if they became organised they would never get a collective bargaining agreement. When the workers voted in IAM in a representation election in March 1984, the company carried out this threat by drawing out collective bargaining negotiations for nearly a year. IAM's position that the employer was engaged in unfair labour practices by stalling the negotiations and refusing to prepare in writing and execute the agreement already reached verbally, was put forward in a complaint by the regional director of the National Labor Relations Board (NLRB) dated July 1985. The Administrative Law Judge of the NLRB decided in February 1986 that the employer had not engaged in unfair labour practices (a copy of this decision is supplied). Before this decision was handed down, continues the IAM, in April 1985 a leader of the union's negotiating team and former local union President, Mr. A. Williams, applied for the decertification of the union and according to IAM, was rewarded for this by prompt promotion to a supervisory position.

&htab;46.&htab;According to the IAM, because of the year-long delaying tactics used by the company, the attrition, hiring practices and departure of workers due to poor working conditions, the original workers who had requested and won recognition for collective bargaining purposes were effectively denied the opportunity of enjoying basic trade union rights. They thus lost their recognition status and the decertification proceedings went ahead.

&htab;47.&htab;In its communication of 14 September 1987, the Government states that the laws of the United States are generally in compliance with Convention No. 98 and that its labour practices, and specifically the conduct of this dispute, are in accordance with that Convention.

&htab;48.&htab;It summarises the events leading to the filing of the unfair labour practices charge with the NLRB against Norsk Hydro. In April 1984 the IAM was certified as the exclusive bargaining representative for the employees of Norsk Hydro and from May 1984 to March 1985 the union and management met 24 times in an effort to negotiate a collective agreement. According to the Government, the parties agreed on a wide range of issues but were blocked on others, including wages. It appears that on 28 March 1985, the union announced that it would take Norsk's final offer on wages back to the membership for ratification; 20 per cent of the membership ratified the agreement after a vote but the parties failed to sign the ratified agreement. On 29 April 1985, Mr. A. Williams, a former President of the local union, filed a petition to have it decertified and a few months later the employer received a decertification petition signed by 60 of its employees. It accordingly wrote to the union that it was withdrawing recognition pursuant to the National Labor Relations Act because it had a good faith doubt as to whether IAM represented a majority of its members.

&htab;49.&htab;On 10 May 1985, continues the Government, IAM filed an unfair labour practice charge against Norsk Hydro with the NLRB which, in accordance with administrative procedures, was investigated by an agent of the NLRB. This led to the issue of a formal complaint in July alleging that Norsk Hydro, having reached full and complete agreement with the bargaining agent, had refused to execute a written agreement embodying the contract. In August the complaint was amended to include an allegation that the employer's withdrawal of recognition amounted to an unfair labour practice under the National Labor Relations Act. The Government stresses that during the three-day hearing of this complaint before the Administrative Law Judge all parties were represented and were able to call, examine and cross-examine witnesses and introduce documentary and other evidence. The Government attaches a copy of the February 1986 decision dismissing the complaint. As neither party exercised their right of appeal by filing exceptions to this decision, the NLRB adopted it as its own.

&htab;50.&htab;The Government denies the complainant's allegations that the laws of the United States allow companies to hire consultants in order to deny workers freedom of association. It points out that section 7 of the National Labor Relations Act protects the rights of employees "to self-organisation, to form, join or assist labour organisations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...". The Government stresses that the NLRB complaint did not include any allegation that Norsk Hydro's consultant had infringed section 7 or committed an unfair labour practice by denying workers these rights. It argues that nothing in Convention No. 98 prohibits companies from hiring labour consultants to assist them in labour negotiations.

&htab;51.&htab;As regards the allegation that the employer did not bargain in good faith because it failed to sign the completed agreement, the Government states that Convention No. 98 covers voluntary negotiations and requires a good faith approach to bargaining. It also notes that the question of whether one party adopts an amenable or uncompromising attitude towards the demands of the other party is a matter of negotiation between them. It recalls that sections 8(a)(5) and 8(b)(3) of the National Labour Relations Act have a similar requirement that both parties bargain in good faith, but do not require a party to agree to a contract if its terms are unacceptable. Moreover, the Government emphasises that, after a lengthy hearing, the NLRB judge found that the parties had not come to a meeting of the minds concerning wages and thus the employer "had no obligation to execute the purported agreement". [NLRB decision, page 17.]

&htab;52.&htab;As regards the decertification issue, the Government states that its understanding of Convention No. 98 is that a person's membership of a union is voluntary, and that nothing in any ILO Convention prevents a country from requiring that a union represent a majority of its members in order to be recognised as their exclusive bargaining representative. The Government points out that after the NLRB judge looked at the allegation of unlawful withdrawal of recognition, he found that the employer's action had been "based on objective evidence supporting [its] asserted good faith doubt of the union's majority status". [NLRB decision, page 21.] The judge also referred to the resignation of the union President and the lack of any observable union activity as legitimate indicators that IAM no longer represented a majority of its members.

&htab;53.&htab;The Committee notes that the allegations in this case fall into two categories: first, the complainant claims that the employer, Norsk Hydro, engaged in specific unfair labour practices by refusing to execute a collective bargaining agreement and by exercising its right to withdraw recognition after receiving a petition from its employees to this effect; secondly, and more generally, the complainant alleges an anti-union climate in the undertaking evidenced by hiring practices and delaying tactics.

&htab;54.&htab;The Committee takes particular note of the fact that the specific charges against Norsk Hydro were dismissed by the Administrative Law Judge of the National Labor Relations Board after a lengthy hearing in which the guarantees of due process were respected, and that no appeal was lodged against this dismissal by either of the parties.

&htab;55.&htab;From the copy of the February 1986 dismissal decision made available to it, the Committee notes that, on the facts, no agreement had been reached on the wage issue at the final formal bargaining session on 28 March 1985. The employer's subsequent refusal to sign a purported agreement is therefore not seen as an act of bad faith. As in previous cases concerning this type of allegation, the Committee would recall the principle that, although both employers and trade unions should bargain in good faith, whether one party adopts an amenable or uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties.

&htab;56.&htab;As regards the withdrawal of recognition, the Committee notes that the NLRB Judge found that the employer had acted within the law. The Committee, when considering systems which afford most representative unions preferential or exclusive bargaining rights, has stated that the determination of representativity should be based on objective and pre-established criteria [208th Report, Case No. 981 (Belgium), para. 113]. It has also said that a system drawing a distinction between the most representative trade union and other unions should not have the effect of preventing minority unions from functioning or at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances [230th Report, Case No. 1158 (Jamaica), para. 99]. In the present case the Committee notes that the withdrawal of recognition of the union proceeded on a petition by a number of employees who claimed that the union did not represent the majority of the workers. The complaint against this withdrawal was fully investigated by the Administrative Law Judge who dismissed it, finding that objective evidence supported the good faith doubt of the company regarding the union's majority status. Furthermore, no evidence has been advanced by the complainant to substantiate its allegation that this withdrawal denied the workers concerned their basic trade union rights. The Committee accordingly considers that this aspect of the case does not call for further examination.

&htab;57.&htab;On the other hand, as regards the more general aspect of the complaint alleging an anti-union climate in the undertaking, the Committee considers that by, for example, exploiting a series of possibly avoidable delays and misunderstandings, and by prolonging unduly the negotiations for a collective agreement, the company's attitude was not conducive to any kind of final agreement being reached following the negotiations.

&htab;58.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the recommendation that this case does not call for further examination.

&htab;59.&htab;The National Agricultural and Allied Workers' Union (NAAWUL) submitted its original complaint on 9 May 1983. The Committee on Freedom of Association has examined the case on four occasions, most recently in May 1987 [see 251st Report, paras. 357 to 372] when its interim conclusions were approved by the Governing Body at its 236th Session.

&htab;60.&htab;The Government supplied further information on the outstanding allegations in this case in a communication dated 18 June 1987, and transmitted a copy of the General Auditing Office's audit of NAAWUL's accounts during the 73rd Session of the International Labour Conference, June 1987.

&htab;61.&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;62.&htab;When the Committee first examined the case in February 1984 [see 233rd Report, paras. 628 to 658], it noted, inter alia, that the complainant organisation had had its activities suspended in November 1982 by the Government while an audit was being conducted into the union's accounts following a request to this end from the union itself in the face of internal accusations and suspicions of embezzlement. This suspension allegedly delayed settlement of NAAWUL's bargaining dispute with the Firestone Plantations Company.

&htab;63.&htab;In May 1984, when the Committee next examined the allegations [see 234th Report, paras. 585 to 611], the Committee observed that the complainant remained under suspension orders although the audit had been concluded, and urged that the suspension be lifted without delay; it also requested information, inter alia, regarding settlement of the dispute with the Firestone Plantations Company.

&htab;64.&htab;When the Committee examined the case in November 1985 [See 241st Report, paras. 551 to 563.], it noted with interest that the suspension had been lifted in October 1984 and, while recalling the importance of Article 4 of Convention No. 87, closed this aspect of the case. As regards industrial relations within the Firestone Plantations Company, the Committee noted that a collective agreement had been concluded with the company's employees' council and requested information as to NAAWUL's role in these negotiations.

&htab;65.&htab;At its most recent examination of the case, the Committee noted that an employees' council had been elected to replace NAAWUL during the period of its suspension and had proceeded to negotiate a collective agreement current from November 1983 to November 1985. The Committee considered that in the circumstances the complainant union had been effectively deprived of any opportunity to represent its members in negotiations. It drew the Government's attention to the principles of freedom of association arising from Article 4 of Convention No. 87, and in particular 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. It also requested the Government to reply speedily to new allegations which had been submitted by the complainant in March 1987.

&htab;66.&htab;The Governing Body approved the Committee's recommendations on the case, in particular, that it trusted that the Government would 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.

&htab;67.&htab;In a letter dated 31 March 1987, the NAAWUL alleges that the Liberia Federation of Labour Unions (LFLU) - in spite of the pending collective agreement between NAAWUL and Firestone and in collaboration with the Minister of Labour - signed another collective agreement without the knowledge of and against the interests of the Firestone workers. It alleges that this illegal contract violates sections 4600, 4601 and 4601-A of the Liberian Labour Law.

&htab;68.&htab;According to the NAAWUL, the LFLU has collaborated with the Minister of Labour to help the employer continue to exploit the workers, in particular through avoiding payment of $2.60 which Firestone allegedly illegally deducted from the daily wages of the workers and an 11 cent increment which NAAWUL had obtained in the original April 1982 negotiations. NAAWUL points out that the Ministry of Labour's arbitration of the April 1982 deadlocked negotiations had held that the employer's deduction of this $2.60 for housing, medical services, rice, etc., violated a ruling of the late President of Liberia. From the newspaper clippings attached to the complaint, it appears that the new collective agreement between the LFLU and Firestone was signed on 19 January 1987 and covered wage increases for rubber tappers, labourers and classified workers as from 1 January 1987.

&htab;69.&htab;In a communication dated 18 June 1987, the Government denies the allegations and explains that, in August 1986, when the collective agreement between Firestone and its employees' council was about to expire, NAAWUL petitioned the Ministry of Labour to conduct a referendum to ascertain whether the employees' council still enjoyed the confidence of Firestone workers. The Ministry accordingly called for a referendum, but the employees' council was granted a writ of prohibition against such action by the Supreme Court. The collective agreement remained in force until September when a representation election was conducted and won by the Firestone Agricultural Workers' Union (FAWU), a member of the Liberia Federation of Labour Unions. NAAWUL did not contest the election or challenge its results. Subsequently, a new collective agreement was concluded and the Ministry's only action was to attest to the agreement at the request of both parties.

&htab;70.&htab;The Government recalls that there had been no collective bargaining agreement between NAAWUL and Firestone, but that their April 1982 negotiations had deadlocked. The Ministry had been invited by the parties to look into the matter and NAAWUL had been temporarily suspended during the audit of its accounts; during the suspension, the Firestone workers elected an employees' council and when its collective agreement with Firestone expired, the workers unanimously elected the FAWU. The Government stresses that the Ministry did not play any part in having FAWU elected as representative of the workers.

&htab;71.&htab;The Government denies ever having collaborated with the Liberia Federation of Labour Unions to exploit Firestone employees. It is unaware of any obligation on Firestone to repay $2.60 deducted from the daily wages of its workers. It also denies knowledge of an 11 cent increment awarded in favour of Firestone employees in April 1982. According to the Government, there was no collective agreement in force for the company until that which was concluded with the employees' council.

&htab;72.&htab;Lastly, the Government repeats that it merely attested the collective agreement reached between Firestone and the FAWU because both parties so requested. If the existence of a lawful collective bargaining agreement is condemned by NAAWUL, states the Government, it is just unfortunate.

&htab;73.&htab;From the copy of the audit report supplied by the Government in June 1987, it appears that the NAAWUL Secretary-General, Treasurer and Workers' Education Director, were requested to account for a total of approximately $20,000 worth of union funds, and the union was recommended to organise a better record-keeping system. According to the audit, only $2,606.65 of this sum represented unaccounted for money from the WCL donation to the NAWWUL. No criminal proceedings were recommended or were commenced in connection with the audit.

&htab;74.&htab;The Committee notes that the outstanding aspect of this case revolves around the legality of the most recently concluded collective agreement for employees of the Firestone Plantations Company: the complainant still claims to represent the workers involved, whereas the Government states that the organisation which signed on behalf of the workers, the Firestone Agricultural Workers' Union linked to the Liberia Federation of Labour Unions, was entitled to do so following a representation election in September 1986 which was neither contested nor challenged at the time by the complainant.

&htab;75.&htab;The Committee observes that the Firestone workers appear to have changed exclusive bargaining agents twice in recent years, having elected NAAWUL as sole bargaining agent in May 1981 and having been represented by it in unsuccessful negotiations in 1982, then being represented by the Firestone employees' council during the suspension of NAAWUL and for two years after the suspension was lifted, and then, since September 1986 by the Firestone Agricultural Workers' Union. The Committee, in its most recent interim conclusions on this case, in the absence of detailed information, criticised the initial administrative suspension of NAAWUL which effectively deprived it of any opportunity to represent its members in negotiations.

&htab;76.&htab;Given the details now before the Committee, and noting that the Committee of Experts on the Application of Conventions and Recommendations has not called into question the Liberian system of designating sole bargaining agents, it would appear that the situation of NAAWUL has substantially changed since it became free to resume its activities. Since its suspension was lifted in October 1984 NAAWUL appears to have lost support among Firestone workers to the extent that the union did not even contest the results of the representation election in September 1986 when, it seems, the Firestone Agricultural Workers' Union was chosen by the workers to represent them.

&htab;77.&htab;The complainant gives no information as to its current membership strength in the Firestone Plantations Company nor does it argue that the union which presently represents the workers is numerically unrepresentative. It states however, that the FAWU works "in collaboration with the Minister of Labour" to exploit the employees in question. This allegation is not supported by detailed evidence. Moreover, the Government directly denies it, specifying that the exploitation charge is baseless as there was never any agreed bargain or award concerning repayments or increments. The Committee observes from a perusal of the 1982 advisory opinion given by the Director of Trade Union Affairs (who had been chosen to conciliate certain items of negotiation which were deadlocked), and accompanying documents that Firestone never accepted this ruling. Moreover, NAAWUL did not use the legislative possibility of pursuing its claims through binding arbitration. The Committee therefore considers that no useful purpose would be served by examining this aspect of the case further.

&htab;78.&htab;The questions raised in the present case, the Committee observes, are linked to the comments expressed by the Committee of Experts on the lack of clear and precise provisions in the current Liberian Labour Law to protect workers' organisations adequately against acts of interference as required by Article 2 of Convention No. 98 [see the 1987 observation made by that body under Convention No. 98]. The Committee of Experts has also criticised one of the legislative provisions referred to very briefly by the complainant in its new allegations: section 4601-A prevents agricultural workers from joining industrial unions, and is mentioned in the Committee of Experts' 1987 observation under Convention No. 87. In this connection the Committee notes that the Government informed the 1987 Conference Committee on the Application of Conventions and Recommendations that a draft Revised Labour Code (prepared with ILO assistance and revised by a tripartite committee) had taken into account all the comments of the Committee of Experts. In particular, the Government undertook to adopt the new legislation before the next International Labour Conference.

&htab;79.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: The Committee urges the Government, as the Committee of Experts has done, to adopt as soon as possible a new Labour Code in order to provide, in particular, adequate protection against acts of employer interference as required by Article 2 of Convention No. 98 and so as to repeal certain sections of the present labour legislation which are contrary to Convention No. 87, ratified by Liberia. The Committee expects that questions concerning the representativity of trade unions will be appropriately dealt with under the new Labour Code.

&htab;80.&htab;In a communication dated 9 October 1986, the Trade Unions Action Committee (TUAC) - representing the following seven trade union federations: Pakistan National Federation of Trade Unions, All Pakistan Federation of Trade Unions, National Labour Federation of Pakistan, Pakistan Trade Union Federation, Pakistan Central Federation of Trade Unions, Pakistan Labour Organisation and United Workers' Federation - presented a complaint of violations of trade union rights against the Government of Pakistan. It supplied additional information in a communication dated 25 November 1986.

&htab;81.&htab;The Committee adjourned its examination of the case on several occasions while awaiting receipt of the Government's reply. At its May 1987 meeting [see 251st Report, para. 13, approved by the Governing Body at its 236th Session], the Committee addressed an urgent appeal to the Government for its observations and recalled that it would present a report on this case even if these were not received in time for the Committee's next meeting. To date no reply on this case has been received from the Government.

&htab;82.&htab;Pakistan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has not ratified the Collective Bargaining Convention, 1981 (No. 154).

&htab;83.&htab;In the TUAC's communication of 9 October 1986, it alleges that the Government has openly violated Conventions Nos. 87 and 98 since the imposition of martial law in July 1977, particularly through its ban on strikes, denial of collective bargaining and administrative and legislative measures.

&htab;84.&htab;Firstly, the TUAC alleges that workers employed in the following institutions have been denied the right to organise in trade unions: Pakistan International Airlines Corporation (PIAC); Pakistan Security Printing Corporation; Security Papers Limited; Pakistan Broadcasting Corporation; Pakistan Television Corporation; all hospitals and institutions maintained for the care of the sick; all educational institutions; particular categories of workers in railways, post and telegraph, oil and gas wells and refineries; Civil Aviation Authority; all persons employed by Federal or Provincial Government; Punjab Road Transport Corporation; Sind Road Transport Corporation; Karachi Transport Corporation; all workers employed in export processing zones. All these companies, except a few oil and gas corporations, are public sector undertakings.

&htab;85.&htab;Secondly, according to the TUAC, workers employed in the nationalised banks and financial institutions, life insurance companies, oil refineries, gas and electricity companies have been denied the right to bargain collectively. For the first three types of institutions, an amendment to the Industrial Relations Ordinance (s. 38A) has been used to impose awards handed down by a government-appointed wage commission; in the oil, gas and electricity establishments, the Government has used the Essential Service (Maintenance) Act to allow a one-man tribunal to set the conditions of employment.

&htab;86.&htab;These measures, states the complainant, also violate s. 17 of the Pakistan Constitution which states that: "Every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality".

&htab;87.&htab;The TUAC states that the national trade union confederations, both individually and collectively, have sought solutions to this state of affairs before all fora, including the federal and provisional ministries, departments of labour and tripartite bodies without any tangible outcome. It also placed its case before the ILO Sectoral Review Mission which visited Pakistan in July-August 1986.

&htab;88.&htab;In its letter of 25 November 1986, the complainant outlines the history of labour legislation in Pakistan since independence in 1947 and stresses the Government's silence in face of continued criticism of the situation by workers and their organisations. It claims that the current legislation is in violation of Conventions Nos. 87, 98 and 154.

&htab;89.&htab;The Committee would first express its profound regret that, in spite of the seriousness of the allegations made in this case and the various requests made to the Government to transmit its observations thereon, the Government has not done so. In these circumstances, and before examining the substance of the case, the Committee considers it necessary to recall the considerations it set out in its First Report [para. 31], namely that the purpose of the procedure for the examination of allegations of violation of freedom of association is to promote respect for trade union rights in law and in fact, and that if the procedure protects governments against unreasonable accusations, governments should in turn recognise the importance of formulating, for objective examination, detailed replies to the allegations brought against them.

&htab;90.&htab;The Committee observes that this case involves allegations of incompatibility between martial law, the Industrial Relations Ordinance 1969, as amended, and the Essential Services (Maintenance) Act, with Article 2 of Convention No. 87 and Article 4 of Convention No. 98. This is not the first time that the Committee has been called on to consider Pakistan's industrial relations legislation and the Committee of Experts on the Application of Conventions and Recommendations has been commenting on this legislation for many years, most recently in observations in March 1987 which were the basis of a discussion in the Committee on the Application of Conventions and Recommendations, at the 73rd Session of the International Labour Conference (June 1987).

&htab;91.&htab;The Committee notes that according to the information given at the International Labour Conference, martial law was lifted in Pakistan on 31 December 1985.

&htab;92.&htab;On the first issue in the present case (prohibition of the right to form unions of employees in several government bodies), the Committee notes that the lifting of martial law as of January 1986 ought to have facilitated the re-establishment and formation of trade unions by all categories of workers covered by Convention No. 87. It appears, however, from the complainant's second communication, dated November 1986, that the situation has not changed. The Committee would accordingly recall the importance it attaches to Article 2 of Convention No. 87 which provides that workers without distinction whatsoever shall have the right to establish organisations of their own choosing. On several occasions [see, for example, 211th Report, Case No. 965 (Malaysia), para. 197] the Committee has stated that this Article is designed to give expression to the principle of non-discrimination in trade union matters, and the words "without distinction whatsoever" mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy but also to civil servants and public service employees in general.

&htab;93.&htab;The Committee trusts that, now that there is no legislative impediment to the formation of public employee organisations, such workers will be able, in practice, if they so wish, to establish organisations of their own choosing to represent their occupational interests.

&htab;94.&htab;As regards the right to organise of workers employed in export processing zones, the Committee notes that the Export Processing Zones (Control of Employment) Rules, 1982, do not limit this right. On the other hand, the Rules do prohibit strikes in such zones and this has been criticised by the Committee of Experts since 1983.

&htab;95.&htab;Thirdly, the situation of employees of the Pakistan International Airlines Corporation (PIAC), now deemed to be civil servants by virtue of an amendment to the PIAC Act (and thus denied the right to form trade unions and participate in trade union activities) has been thoroughly examined by the Committee at its November 1986 meeting [see Case No. 1332, 246th Report, paras. 167 to 183]. It accordingly would refer the Government to its conclusions reached at that time, which read as follows:

(a) The Committee considers that the amendment to the Pakistan International Airlines Corporation Act, which deems all PIAC employees to be state employees and, as a result, denies them the right to form unions or carry out union activities, violates Articles 2 and 3 of Convention No. 87.

(b) The Commmittee again urges the Government to initiate appropriate action to amend the PIAC Act so as to restore to the workers concerned the right to establish and join organisations of their own choosing which can function freely to defend and promote their members' occupational interests.

&htab;96.&htab;As regards the second allegation (restrictions on collective bargaining in certain public sector enterprises), the Committee notes that the very provision raised by the complainant (s. 38A of the Industrial Relations Ordinance) has been specifically criticised by the Committee of Experts. The present Committee endorses the Experts' comments thereon, drawing the Government's attention to Article 4 of Convention No. 98 according to which workers' organisations should be able to negotiate their wages and other terms and conditions of employment with the employers and their organisations. It recalls that employees of the types of institutions listed in s. 38A of the Industrial Relations Ordinance do not fall within the category of employees excluded from Convention No. 98 by virtue of its Article 6 and thus insists on the right of their organisations to negotiate their terms and conditions of employment with the employers in the banks, financial institutions and insurance companies in question.

&htab;97.&htab;As regards the alleged restriction on collective bargaining in oil, gas and electricity undertakings by virtue of the Essential Services (Maintenance) Act, 1952, the Committee notes that certain aspects of this Act have already been thoroughly examined in the past [see Case No. 1175, 238th Report, paras. 173 to 190, approved by the Governing Body in Feb.-Mar. 1985]. At that time the Government argued that the Act continued to apply to certain sectors of the economy because of their essential character (e.g. generation of electricity by the Water and Power Development Authority, WAPDA). The Committee endorses its earlier conclusions and would stress that Convention No. 98 and, in particular, its provisions concerning collective bargaining applies to all workers and workers' organisations except those public servants engaged in the administration of the State (Article 6) and the armed forces and the police (Article 5).

&htab;98.&htab;Lastly, the complainant refers to a ban on strikes which the Committee of Experts has considered under sections 32 and 33 of the Industrial Relations Ordinance and section 4 of the Export Processing Zone Rules. The present Committee supports the Experts' opinion that the list of services declared to be public utility services in which strikes can be prohibited (s. 33) is too broad; it likewise endorses the Experts' insistence on the importance of workers in export processing zones - despite the economic arguments often put forward - like other workers without distinction whatsoever, enjoying the trade union rights provided for by the freedom of association Conventions.

&htab;99.&htab;The Committee refers this case as a whole to the Committee of Experts for ongoing examination under Conventions Nos. 87 and 98.

&htab;101.&htab;The complaint of violation of freedom of association in Canada (Quebec) was presented by the Canadian Labour Congress (CLC) on 19 February 1987. The Federal Government submitted the observations of the Government of Quebec in a letter dated 27 October 1987.

&htab;102.&htab;Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;103.&htab;In its complaint dated 19 February 1987, the CLC, on behalf of its affiliate organisation, the Quebec Federation of Labour-Construction (QFL-Construction), explains the reasons for the strike and lock-out which took place in the Quebec building industry in May and June 1986.

&htab;104.&htab;The complainant explains that, until 30 April 1986, conditions of work in the building industry had been governed by a decree respecting the industry, of which it encloses a copy. It adds that negotiations with a view to renewing the collective agreement had begun around 11 March 1986 between the representative associations affiliated to the QFL-Construction and the Quebec Provincial Council of the Building Trades, which represents the vast majority of workers in the branch.

&htab;105.&htab;However, the complainant continues, these negotiations failed to produce an agreement, despite the intervention of a conciliator, and a legal, peaceful and orderly strike was authorised by secret ballot. It was held on 9, 16, 19, 23, 27 and 28 May and on 2, 3 and 16 June 1986; the employers retaliated by a lock-out declared on 4, 5 and 6 June 1986.

&htab;106.&htab;The provincial Parliament reacted to the situation by adopting, on 17 June 1986, an exceptional law, Act No. 106 on the resumption of construction work, completely changing the rules of the game, with the direct and immediate result of flouting the freedom of association of construction workers, explains the complainant.

&htab;107.&htab;The substance of Act No. 106 deprives construction workers of the right to strike for a three-year period; under the Act, a mediator shall be appointed who may fix the working conditions of construction workers if the sides fail to conclude a collective agreement by 1 August 1986; the Act provides further that the conditions of work laid down by the former Decree are reintroduced.

&htab;108.&htab;The complainant alleges that this Act deprives construction workers of the right to strike, thus running counter to the Canadian Constitution and the Quebec Charter of Rights and Freedoms and infringes freedom of association. The history and the exercise of workers' freedom of association are linked to the development of collective bargaining and the right to strike; if freedom of association is to have a real, and not merely illusory meaning, it has to include any behaviour which may be reasonably supposed to contribute to the legitimate aims of a workers association. The right to strike is thus an integral and inseparable part of freedom of association, continues the complainant.

&htab;109.&htab;The complainant adds that the Act was challenged by declaratory judgement brought before the High Courts by the National Brotherhood of Carpenters, Joiners, and Forestry and Factory Workers, QFL-Construction and a number of their members.

&htab;110.&htab;The Federal Government of Canada, in its reply of 27 October 1987, indicates that the Government of Quebec does not deny having intervened in this dispute, but considers that its intervention enabled the parties to come together and reach an understanding on the terms of a new collective agreement. In a situation of crisis, states the Government, it assumed its responsibility towards the population of Quebec and, as far as possible, respected the construction workers' fundamental rights.

&htab;111.&htab;More specifically, the Government explains that in the light of the three decisions handed down by the Canadian Supreme Court in April 1987, which it encloses, Act No. 106 is not incompatible with the Canadian Charter of Rights and Freedoms contained in the Canadian Constitution, or with the Quebec Charter of Rights and Freedoms, and is therefore in conformity with Canadian law. It adds that the complainant, QFL-Construction, which had contested the validity of Act No. 106 before the Quebec Supreme Court, dropped its appeal after the three decisions were handed down.

&htab;112.&htab;The Government reiterates its adherence 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, and that it recognises that the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests; it affirms that the Act on labour relations in the building industry guarantees unrestricted exercise of freedom of association.

&htab;113.&htab;The Government further admits that in March 1986 management and labour began negotiations with a view to renewing the conditions of work of construction workers. However, despite having resorted to conciliation, the parties failed to reach an agreement and construction work was interrupted by repeated strikes and lock-outs in May 1986. Despite a final bargaining attempt with the assistance of a conciliator, negotiations reached a deadlock and the trade union decided to hold an indefinite general strike.

&htab;114.&htab;However, continues the Government, prolonged interruption of construction work throughout Quebec was likely to jeopardise seriously the national community. It was thus compelled to resort to exceptional measures to encourage settlement of the dispute. The Government refrained, however, from immediately imposing conditions of work on these workers, and provided in Act No. 106 for continued bargaining through mediation machinery to enable the parties to reach an agreement. These measures bore fruit because the employers' association and the representative trade union associations, including QFL-Construction, concluded an agreement soon afterwards. The parties signing the collective agreement even requested the Quebec Minister of Labour to extend the agreement to the entire building industry in accordance with the Act on labour relations in the industry.

&htab;115.&htab;The Government admits that Act No. 106 was an exceptional and temporary measure, but states that its effect had been terminated by Decree No. 1190-87 adopted on 29 July 1987.

&htab;116.&htab;After providing a detailed day-by-day account of the dispute, the Government states that its intervention was justified for three reasons: firstly, the impact of a prolonged interruption of construction work on the Quebec economy as a whole; secondly, the social consequences of the dispute, and particularly the atmosphere of violence which surrounded it; and lastly, the attitude of confrontation between the parties which made it unlikely, if not impossible, that the dispute would be settled within a reasonable time, despite the repeated use of pressure by both sides and the constant efforts of a conciliator who had been approved by both sides.

&htab;117.&htab;As regards the economic impact, the Government explains that the building industry is different from most other industries in that collective bargaining takes place at the branch level for the entire province of Quebec, since this industry plays a vital role in the Quebec economy as a whole. It follows that a dispute in this branch affects not only the parties involved, but also the Quebec economy as a whole. According to a study carried out in April 1987, the activities of the construction branch account for about ten per cent of the entire demand for goods and services in Quebec.

&htab;118.&htab;Moreover, disputes in the building industry affect all other economic activities in Quebec. Lastly, in addition to the consequences for related industries, the Government states that at the time of the dispute, construction was under way on 15,000 to 20,000 apartments, many of which were due to be finished by 1 July 1986. A great many families who were to move into the new housing were thus homeless for a time because of this labour dispute. Thus, the delay in completing new buildings would have had very serious consequences if the interruption of construction work had continued.

&htab;119.&htab;Furthermore, continues the Government, the interruption of work could, taken on a yearly basis, entail a loss of income of $3,000 million for the Quebec Government and $1.7 million for the Canadian Government. It explains further that the Canadian economy, like other Western economies, is gradually recovering from the recession of the early eighties, and that losses on this scale could result in an increase in the already considerable budget deficits and destabilise Quebec's economic growth, which was still very precarious in 1986.

&htab;120.&htab;Moreover, continues the Government, the effect of an interruption of construction work would become increasingly irreversible as the dispute continued. When a dispute is short-lived, there is reason to believe that the work may be caught up to a certain extent, mitigating the consequences on closely related industries and on the economy as a whole, but a long-lasting dispute may have irreversible effects: for example, suppliers face an increase in financing costs, storage expenses and a forced reduction in manpower. As for users, enterprises wishing to invest suffer from the delay in releasing the product on the market; families whose new housing cannot be delivered on time face additional expenses (rise in prices, storage costs, etc.) and have to seek temporary accommodation. In the medium and long term, therefore, a long-lasting dispute in the construction industry leads to a reduction in investment and loss of the investors' trust.

&htab;121.&htab;The Government recognises that strikes are aimed at exerting economic pressure on the employer and the effects of a strike generally extend beyond the enterprise. Where competition is available, suppliers or users can generally offset the effects of a dispute by resorting to other enterprises. But in the case of the building industry, where the dispute occurs throughout Quebec, users and suppliers whose business is conducted exclusively in Quebec cannot seek alternatives and are forced to suffer the consequences of the dispute, over which they have no control.

&htab;122.&htab;These irrevocable consequences of a lasting dispute in the building industry on other branches and on the Quebec economy as a whole, placed the Government, faced with a strike which had already lasted several days and which was likely to continue for an indefinite period, in an exceptional emergency situation which, according to the Government, justified the adoption of extraordinary measures to bring about settlement of the dispute.

&htab;123.&htab;The Government considers that the social consequences of a lasting interruption of construction work throughout Quebec made its intervention necessary and imperative. It feared a serious outbreak of violence throughout the country. With each passing day of the strikes and lock-outs, the Government noted growing resistance on the part of some employers to the interruption of work. Between 9 May and 3 June 1986, this situation had provoked several acts of violence related to the dispute. During this period, both parties had entrenched themselves and the possibility of reaching a settlement in the near future was becoming remote.

&htab;124.&htab;Moreover, because of the vital part played by construction in the Quebec economy, a prolonged dispute would have resulted in the loss of a great many jobs in industries with which it has direct or indirect links. At a time when the unemployment rate fluctuated around ten per cent, a considerable proportion of workers in Quebec would suffer severe consequences, not only economically, but also socially.

&htab;125.&htab;As regards the climate of confrontation between the parties, the Government adds that, despite the intervention of a conciliator whose competence was unanimously recognised by everyone involved, no significant progress had been made towards an agreement during three months' intense negotiations from March to June 1986. As bargaining continued, the parties stuck to their initial positions, so that at the beginning of June 1986, negotiations had reached a deadlock.

&htab;126.&htab;The Government had hoped that a degree of understanding would be reached between the sides as a result of the pressure exerted and the intense negotiations. However, it had to face the fact that the sides had not come any closer to an agreement since the beginning of June 1986, and that the dispute could not be solved in the near future: the parties came to the bargaining table not to seek a compromise, but on the contrary, to engage in a confrontation which could only end in one side fully submitting to the demands of the other.

&htab;127.&htab;In view of the effect of the dispute on a great many enterprises and individuals who had no control over its outcome, the Government considers that it was duty-bound to intervene and find a way to resolve the crisis. It did not lay down the terms of a new collective agreement itself, but chose to appeal to the parties' sense of responsibility by giving them the opportunity to continue bargaining with the assistance of a mediator.

&htab;128.&htab;This measure produced the positive result aimed for, since the parties resumed negotiations in a new spirit of compromise. With the assistance of the mediator appointed in accordance with Act No. 106, they finally succeeded in concluding an agreement. A new collective agreement was signed on 29 August 1986 by the Association of Construction Entrepreneurs of Quebec, on the employers' side, and the Quebec Provincial Council of the Building Trades and QFL-Construction, on the workers' side. The parties then requested, in accordance with the law, that a decree be adopted to extend the conditions of work provided for in the collective agreement to the entire construction industry of Quebec. A draft decree was published in the Quebec Official Gazette on 5 December 1986, and Decree No. 172-87 of 4 February 1987 on the building industry, was published in the Official Gazette of 18 February 1987.

&htab;129.&htab;The Government considers that Act No. 106 is an exceptional and temporary measure aimed only at encouraging the parties to reach an understanding and to conclude a new collective agreement. As provided in section 18 of Act No. 106, the Government consequently officially put an end to its provisions by Decree No. 1190-87 of 29 July 1987.

&htab;130.&htab;In conclusion, the Government considers that the legislation of Quebec provides that construction workers' conditions of work are negotiated at the branch level by employers and trade unions whose respresentativity has been established democratically. This process gives concrete expression to the trade union right of collective bargaining; in fact, it gives a labour dispute in the building industry throughout Quebec a scope which is not to be found in most other sectors. The negotiations to obtain new working conditions for construction workers had reached a deadlock in Spring 1986; no one could foresee a settlement in the near future since both parties held fast to their positions despite conciliation efforts. In this context, it was the responsibility of the Government of Quebec to find a way of breaking the deadlock. In view of the impact of the dispute on the economy of Quebec as a whole and on its population, the Government had no choice but to intervene in order to avert the irreversible consequences of prolonged interruption of construction work. It had refrained from imposing a new collective agreement and had chosen to set up machinery enabling the sides to reach an agreement.

&htab;131.&htab;The complaint of the Canadian Labour Congress is based on the adoption by the Quebec Parliament on 17 June 1986 of an exceptional law, Act No. 106 concerning the resumption of construction work, under which striking construction workers were obliged to resume work immediately and which suspended the right to strike in this sector for a three-year period.

&htab;132.&htab;The complainant's and the Government's versions of this matter are, in part, contradictory.

&htab;133.&htab;According to the complainant, in view of the failure of negotiations held since 11 March 1986 to renew the collective agreement, the workers held a legal, peaceful and orderly strike on 9, 16, 19, 23, 27 and 28 May 1986 and on 2, 3 and 16 June 1986, and employers declared a lock-out on 4, 5 and 6 June 1986. In the middle of negotiations, however, the Quebec Parliament adopted exceptional Act No. 106 on 17 June 1986, which suspended construction workers' right to strike for three years and appointed a mediator to help the sides to conclude a collective agreement by 1 August 1986, failing which the Government could issue a decree laying down conditions of work for construction workers.

&htab;134.&htab;According to the Government, on the other hand, while it is true that Parliament had adopted the exceptional Act on resumption of construction work, the reasons for this intervention, which is temporary in nature, arose from the violent atmosphere surrounding the dispute and the atmosphere of confrontation between the parties which made it unlikely, if not impossible, that the dispute would be settled within a reasonable time, despite the constant efforts of a conciliator approved by both sides. Another reason was the impact of a prolonged interruption of construction work on the Quebec economy as a whole.

&htab;135.&htab;The Government adds that its intervention enabled the sides to reach an understanding and to conclude, with the mediator's assistance, a collective agreement on 29 August 1986, which, at the request of both sides, was extended by decree to the entire construction industry. It also adds that on 29 July 1987 the right to strike was restored.

&htab;136.&htab;The Committee notes the Government's statement that, in the light of the three decisions handed down by the Canadian Supreme Court in April 1987, Act No. 106 is not incompatible with the Canadian Charter of Rights and Freedoms or the Quebec Charter of Rights and Freedoms and that, consequently, it is in conformity with Canadian law.

&htab;137.&htab;The Committee notes that Act No. 106 respecting resumption of construction work provides, in Division II (section 2), that the workers who had stopped working because of a strike or lock-out must return to work on 17 June 1986 and in Division VI (section 18), that Division II will cease to have effect as from a date to be fixed by government decree or, at the latest, on 30 April 1989. It provides further, in Division IV (sections 8-11), that bargaining between the sides shall continue, that a mediator shall be appointed by the Minister of Labour to assist the parties in concluding an agreement, that he must report to the Minister on the stage reached in negotiations by 1 August 1986, and that, if the sides fail to reach an agreement, after the mediator has made his report, the Government shall fix by decree the workers' conditions of work for a period to be determined by the Government, which may extend to 30 April 1989.

&htab;138.&htab;The Committee therefore points out with concern that this text imposed temporarily, but initially for a three-year period, a prohibition on strikes in the construction industry. The Committee recalls the importance which it has always attached to the principle that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests.

&htab;139.&htab;The Committee notes the Government's argument that the duration of the dispute, which had continued for three months and which seemed impossible to resolve, justified its action. The Committee does not accept this argument since, as the Government itself admits, the effects of the long-lasting dispute were essentially economic and social. The strike in the construction industry did not endanger the life, personal safety or health of the whole or part of the population.

&htab;140.&htab;The Committee notes further the Government's argument relating to the climate of violence which pervaded the strike. On this point, the Committee recalls that trade unionists, like other persons, must respect the law of the land and that it is for the legal authorities of the country concerned to deal with any acts of violence within the framework of the proper administration of justice. However, if such acts do occur, they should not give rise to a general prohibition on the right to strike for the entire sector concerned, in this case the construction industry.

&htab;141.&htab;Noting that a collective agreement was drawn up on 29 August 1986 with the assistance of the mediator, and extended by decree, at the request of both sides, to the entire province of Quebec on 18 February 1987, and noting further that the right to strike was restored in this sector on 29 July 1987 by Decree No. 1190-87 respecting the date on which Division II of the Act on the resumption of construction work ceases to have effect, the Committee considers that there is no reason to continue its examination of the matter.

&htab;142.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

The Committee draws the Government's attention to the importance attached to the principle that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests.

&htab;143.&htab;The Co-ordinating Council of Managerial Staff Organisations of the Republic of Argentina submitted a complaint in a communication dated 8 June 1987, in which it alleged an infringement of trade union rights in Argentina. It provided additional information in support of its complaint on 22 July 1987. The Government submitted its observations in a communication dated 14 September 1987.

&htab;144.&htab;Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;145.&htab;In its communication of 8 June 1987, the complainant organisation alleges that various aspects of the Bill on occupational associations, at present being examined by Parliament, infringe the principles, standards and international Conventions on freedom of association.

&htab;146.&htab;The complainant organisation states that, although the Bill stipulates that trade union associations will be able to be set up freely without previous authorisation, it does not mention the possibility for managerial staff to set up or retain their own trade unions, as advocated by the Tripartite Meeting on Conditions of Work and Employment of Professional Workers organised by the ILO in November 1977.

&htab;147.&htab;The complainant organisation goes on to say that the existence of organisations of managerial staff, technicians and professional workers has been recognised in Argentina since 1955. Subsequently, Act No. 20615 of 1973, supplemented by Decree No. 1045/74, established the right to set up occupational organisations by category of workers and Act No. 22105 of 1979, supplemented by Decree No. 640/80, formally recognised the existence of organisations of managerial staff. This recognition therefore confirmed the existence of these organisations, of which the majority had been actively involved in trade union activities to defend their members and the community as a whole for more than 25 years.

&htab;148.&htab;After defining what it understands by managerial staff, the complainant organisation concludes by demanding legislation to protect managerial staff within a specific trade union structure.

&htab;149.&htab;In its communication of 22 July 1987, the complainant organisation analyses the Bill which has already been passed by the Chamber of Deputies and is now before the Senate. It states that in the Executive's message to the Congress which accompanies the Bill, it is pointed out that "the criterion in previous laws whereby the most representative trade union is in a privileged position is maintained, in accordance with a practice which is increasingly widespread at the international level". According to the complainant organisation, the nature of this principle is changed by the paragraph which follows in the same message: "This privilege granted to the most representative trade union does not entail a denial of the principle of trade union plurality because if the organisation which enjoys trade union status is no longer the most representative, this status is transferred to the organisation which has become the most representative." In the complainant organisation's view, this principle is tantamount to stating that the Bill not only provides for the loss of this trade union status, but also provides for the transfer of the legal rights which accompany it to another organisation, even against the wishes of the managerial staff, thereby infringing their freedom of association. As far as the complainant organisation is concerned, the Bill thus establishes a single trade union system, which is an infringement of Convention No. 87.

&htab;150.&htab;The complainant organisation also refers to sections 21, 22 and 25 of the Bill which require certain formalities to be carried out for the formation of an organisation and which also stipulate that the administrative labour authority has 90 days to decide whether the organisation concerned may be registered as a mere trade union. However, this is only a preliminary stage in the granting of trade union status which is the final administrative step enabling an occupational organisation to operate fully. In fact, an organisation may only request trade union status six months after it has been registered as a simple trade union. According to the complainant, most of the formalities undertaken in connection with this request are subject to a subjective assessment by the authority responsible for the implementation of the legislation, namely the Ministry of Labour. The Ministry has a further 90-day period in which to reach a decision based, according to the complainant, not on the wishes of the workers to unionise but on a degree of representativity at a given point in time. In this way, explains the complainant organisation, trade union pluralism which corresponds exactly to the free choice of workers is impossible.

&htab;151.&htab;The complainant organisation adds that for more than two years, some managerial staff organisations have had to cope with the disappearance of their files and the bureaucratic mentality of civil servants, who require formalities which are legally inexistent, thereby preventing these organisations from obtaining trade union status. According to the complainant, the fears it has about the Bill are not unfounded but are, on the contrary, corroborated by the fact that there is constant infringement of Conventions Nos. 87 and 98 as regards organisations of managerial staff.

&htab;152.&htab;The complainant organisation also states that in the event of a failure to observe one of the formalities required to obtain trade union status, the administrative or judicial recognition will be considered null and void. According to the complainant, this is tantamount to acknowledging that the administrative authority has priority over the judicial authority, which in its view is an infringement of the national Constitution.

&htab;153.&htab;This concept may be found, according to the complainant organisation, throughout the Bill as a whole. For instance, section 56 enables the administrative authority to place a trade union association under supervision without a prior legal ruling; similarly, section 36 enables a confederation or federation to place a lower-level organisation under its supervision. In the complainant organisation's view, this shows the interventionist nature of the Bill, which is contrary to ILO Conventions and to internationally accepted and acknowledged law and practice.

&htab;154.&htab;In concluding, the complainant states that in view of the unfortunate experiences which the organisations of managerial staff have had to face and the fact that even under Act No. 22105 their representativity was reduced by a Ministerial Resolution, their fears and uneasiness as to the Bill are justified. It is not the first time, it points out, that the legitimate growth of organisations of managerial staff is prevented by a Bill.

&htab;155.&htab;In its reply, the Government states firstly that the Bill on trade union associations of workers sets out precisely to promote freedom of association.

&htab;156.&htab;The Government explains that the provisions already approved by the Chamber of Deputies and at present before the Senate do not in any way affect the legitimate interests of the trade union associations of managerial staff. This argument is not called into question by the lack of a standard in the Bill similar to that contained in Act No. 22105 mentioned by the complainant. In fact, the Government notes that this provision infringed freedom of association by banning the joint trade union membership of managerial staff and other workers.

&htab;157.&htab;The Government adds that section 10(b) of the Bill provides, in the same way as the previous Acts mentioned by the complainant, for the existence of trade union organisations of workers in the same trade, occupation or category, amongst which managerial staff may be included.

&htab;158.&htab;The Government quotes a series of provisions which clearly protect freedom of association. It points out that the chapter on the duties of the authority responsible for the Bill's implementation defines the powers of intervention of this authority (section 57). The administrative authority is in fact obliged to apply to the Judiciary when requesting that the trade union status of an organisation be suspended or cancelled or that the organisation be placed under supervision (section 56). Furthermore, an appeal to the courts may be lodged against any administrative ruling (section 61).

&htab;159.&htab;In the Government's view, the complainant's arguments that the Bill would promote a single-trade-union system are also unfounded because the formalities required for the setting up and registration of trade unions are only of a formal nature. The time period allowed the administrative labour authority to examine the case before registration (90 days) seems reasonable, given the mass of administrative tasks the labour administration has to fulfil. Furthermore, at the end of this period, the organisation concerned may bring an appeal before the Labour Court, on the grounds of a tacit refusal to register (section 62(c)).

&htab;160.&htab;The Government also stresses that under section 23 of the Bill, the registration of a trade union association automatically confers on it legal personality and rights, such as the right to make claims on behalf of its members and to represent them, to represent the collective interests of the branch of activity or category of workers, to collect dues or subscriptions from its members and to organise meetings or assemblies without the need for previous authorisation.

&htab;161.&htab;Finally, as regards the exclusive rights granted to trade unions having trade union status, the Government states that the provisions of the Bill do not deprive organisations which are merely registered of their general rights. On this point, the Government refers to the decisions of the Committee on Freedom of Association in this respect and to national systems which grant privileges to the most representative trade union.

&htab;162.&htab;Lastly, the Government considers that the Bill in question does not contain provisions violating freedom of association and that consequently the complaint is not founded.

&htab;163.&htab;The Committee notes that the complaint of the Co-ordinating Council of Managerial Staff Organisations of the Argentine Republic centres on the new Bill on trade union associations of workers submitted by the Government to Congress. The complainant organisation alleges that the Bill does not specifically provide for the possibility of setting up managerial staff organisations, contrary to the Act previously in force. It criticises the procedure established for the registration of trade unions which, in its view, is too slow, and the excessive powers which will be vested in the administrative authority, in this case the Ministry of Labour. Finally, the complainant organisation considers that the system of exclusive privileges granted to the most representative organisation prevents trade union pluralism.

&htab;164.&htab;The Committee notes that the Bill in question does not contain any provision specifically providing for the possibility of establishing organisations exclusively representing managerial staff. However, section 10 of the Bill stipulates that there may be organisations comprised of workers in the same trade, occupation and category, even if they are employed in different branches of activity. It therefore seems clear that under this section, organisations of managerial staff may be set up and function. Moreover, the Committee is bound to point out that the provision of the previous Act to which the complainant organisation refers has been subject to comments by the Committee of Experts on the Application of Conventions and Recommendations and this Committee itself because, although it specifically provided for the establishment of managerial staff organisations, it did not allow such staff to join the same organisations as other workers [see 201st Report, Case No. 842 (Argentina), para. 35]. The Committee therefore considers that the provision of section 10 of the Bill, which is drawn up in a such a way that managerial staff may either set up their own organisations or join workers' organisations in general, is a step forward compared with the previous legislation.

&htab;165.&htab;As regards the formalities required for setting up organisations, the Committee points out that under section 22 of the Bill, the administrative labour authority must register an organisation which meets the necessary requirements (filing its rules, together with its name, list of officials and members, etc.) within 90 days. Under sections 61 and 62, an appeal against administrative decisions may be brought before the courts, in this instance the National Labour Appeal Court.

&htab;166.&htab;To be able to decide whether these provisions are compatible with principles of freedom of association, the Committee must determine whether the formalities required are tantamount to prior authorisation from the authorities or not. In view of the fact that the nature of the formalities and the time period for reaching an administrative decision are reasonable and that there is a possibility of appealing to the courts, the Committee considers that the requirements of the Bill with respect to the setting up of organisations do not infringe the principles of freedom of association.

&htab;167.&htab;Finally, concerning the privileges granted to the most representative trade union, the Committee notes that such an organisation is given "trade union status", which is accompanied by several exclusive rights, in particular, to take part in collective bargaining (section 31 of the Bill). An association with "trade union status" must be entered in the trade union register, have been operating for more than six months and be comprised of more than 20 per cent of the workers it aspires to represent. The association selected must have the greatest number of subscribing members out of the average number of workers qualified for membership, the average being calculated over the six months prior to the request (section 25). On the other hand, organisations which do not have "trade union status" may represent the individual interests of their members and collective interests when there are no organisations with trade union status in the same branch of activity or category (section 23).

&htab;168.&htab;On several occasions in the past the Committee has been called on to take a decision on systems of this nature. It has pointed out that during the discussion on the Right to Organise and Collective Bargaining Convention, the International Labour Conference raised the matter of the representativity of trade unions and accepted that there might be, to a certain extent, a distinction between the various trade unions, depending upon their level of representativity. Article 3, paragraph 5, of the Constitution of the ILO also accepts the concept of the "most representative" industrial organisations. Consequently, the Committee has considered that the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism. However, this is provided that such a distinction does not accord to the most representative organisation privileges extending beyond the privilege of priority, on the ground of its having the largest membership, in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations that are not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in Convention No. 87 [see, for example, 218th Report, Case No. 1113 (India), para. 718].

&htab;169.&htab;In the present case, it would seem that the criteria set out above are respected in the Bill since the most representative organisation is determined according to objective and pre-established criteria (the greatest number of members) and the minority trade unions are able to represent the individual interests of their members. The Committee hopes that, on this basis, managerial staff may be represented in the collective bargaining process by the organisation which the majority of them has chosen.

&htab;170.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee hopes that, on the basis of the criterion set out in the Bill for determining the most representative trade union, managerial staff may be represented in the collective bargaining process by the organisation which the majority of them has chosen.

(b) The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;171.&htab;This case has already been the subject of an interim report by the Committee which appears in paragraphs 555 to 569 of its 243rd Report, approved by the Governing Body at its February-March 1986 Session.

&htab;172.&htab;At its November 1986 and May 1987 meetings, the Committee adjourned its examination of this case, for which it had not received all the information it awaited from the Government. In paragraph 13 of its 251st Report, approved by the Governing Body in May 1987, the Committee stated that in view of the time which had elapsed since the case was last examined it drew the Government's attention to the fact that, in conformity with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, the Committee would present a report at its next meeting on the substance of the matter, even if the information awaited from the Government had not been received in time.

&htab;173.&htab;Since then the Goverment has still not sent the information requested. The Committee accordingly proposes to examine this case in the light of all the information now in its possession.

&htab;174.&htab;Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;175.&htab;At its last examination of the case at its February 1986 meeting, the Committee, taking into account the observations submitted by the complainant in communications dated 27 and 29 June 1985, and by the Government in communications dated 27 November 1985 and 23 January 1986, observed that 11 persons had been sentenced to prison terms of two to four months for striking, following a labour dispute that had broken out between the miners of Al-Hamman and the management of the mine belonging to "Omnium nord-africain" in June 1985.

&htab;176.&htab;The Committee had observed that the versions of the dispute given by the complainant and by the Government were contradictory. According to the complainant, miners had been unjustly accused of having lost explosives had been imprisoned, but had been released when the explosives were found. After this incident, the trade union executives of the mine proposed to the management that it set up a special branch responsible for supervising the circulation and handling of explosives. When the management turned down this proposal, they decided to hold a strike starting on 6 June 1985. The management refused to negotiate and retaliated by having several members of the trade union executive of the mine, and certain trade union activists, arrested; it also recruited new workers to replace the strikers.

&htab;177.&htab;The Government, however, stated firstly that the dispute had been settled following an agreement concluded between the two parties, and secondly, although it was true that 11 strikers had been sentenced to prison terms of two to four months, this was because the miners involved in the complaint had attacked the mine and forced the other miners, who were continuing to work, to join the strike. The Government added that the forces of order had intervened to restore order and that the persons mainly responsible for the situation had been brought before the courts.

&htab;178.&htab;In these circumstances, at its February 1986 meeting the Committee recommended the Governing Body to observe that, according to the Government, the labour dispute which gave rise to this complaint had been settled to the satisfaction of both parties. The Committee nevertheless regretted that 11 persons had been sentenced to terms of imprisonment after a strike. So as to be able to reach conclusions in full knowledge of the facts, it requested the Government to transmit the text of the judgements handed down in these matters, and to provide information on the consequences that the sentencing of these strikers might have on their employment situation. The Committee in any event recalled the importance it attached to strike action as a legitimate means of defending the economic and social interests of workers. It stressed that the use of labour drawn from outside the undertaking to replace striking workers entailed a risk of prejudicing the right to strike, and that in cases of strike action the public authorities should resort to the use of the forces of order only in situations where law and order were seriously threatened.

&htab;179.&htab;At its November 1986 meeting (see paragraph 10 of its 246th Report), the Committee noted that the Government stated in a communication of 17 October 1986 that the workers of the Al-Hamman mine had been tried for disturbing public order and for impeding the freedom to work of other workers. They had been sentenced, without appeal, to terms of imprisonment, and dismissed by their employer for committing these serious offences which had been punished by the competent courts. The Government added that the employer had nevertheless granted them a special indemnity on their dismissal. The Committee regretted that a copy of the judgements handed down against the striking workers had not been communicated to it, and again requested the Government to transmit a copy of those judgements in order to permit it to reach a conclusion on this matter in full knowledge of the facts.

&htab;180.&htab;Since then the Government has still not provided a copy of the judgements.

&htab;181.&htab;The Committee recalls once again that the purpose of the whole procedure instituted in the ILO to examine allegations of violation of freedom of association is to promote respect for trade union rights in law and in fact. If it protects governments against unreasonable accusations, governments on their side will recognise the importance for the protection of their own reputation of formulating for objective examination detailed factual replies to the allegations brought against them. It has always been considered that replies from governments against whom complaints are made should not be confined to generalities [see the Committee's First Report, para. 31].

&htab;182.&htab;In the present case the Committee can only again regret that, in spite of repeated requests, the Government has still not communicated the decisions taken by the courts against the members of the trade union executive of the mine who were sentenced to prison terms of two to four months following a strike. Without those decisions the Committee is not in a position to decide whether or not the strike was a peaceful one, and it cannot know the precise grounds on which the trade unionists were brought to trial and sentenced.

&htab;183.&htab;Nevertheless, the Committee feels bound to recall as a matter of principle that its opinion has always been that the authorities should not have recourse to measures of imprisonment for the mere fact of organising or taking part in a peaceful strike. It also considers that protection against acts of anti-union discrimination should extend to acts the purpose of which is to dismiss a worker. The Committee is of the opinion that protection against reprisals for strike action would be particularly desirable for trade union delegates, who to be able to carry out their duties with complete independence must have an assurance that they will not be prejudiced as a result of being entrusted with those duties. In the opinion of the Committee, legislation which, in practice, allows employers to dismiss a worker on condition that they pay him statutory compensation for dismissal, even if the real reason for his dismissal is that he is a trade union member or activist, does not provide sufficient protection against acts of anti-union discrimination covered by Convention No. 98, which has been ratified by Morocco.

&htab;184.&htab;In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to co-operate fully with the procedure by immediately transmitting all the information requested, including the judgements.

(b) It requests the Government to make every effort to ensure that the miners said to be dismissed for strike action are reinstated in their employment, and to keep the Committee informed of the results of such efforts.

(c) It draws the Government's attention to the principle that the authorities should not have recourse to measures of imprisonment for the mere fact of organising or taking part in a peaceful strike.

&htab;185.&htab;The two complaints from the Moroccan Federation of Labour are contained in communications dated 15 and 30 January, 10 February, 15 April, 26 November, 8 and 10 December 1986 and 12 January 1987. The Government submitted some partial observations in a communication dated 9 May 1986.

&htab;186.&htab;Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;187.&htab;The first point at issue was originally brought to the attention of the Director-General of the ILO in two telegrams dated 15 and 30 January 1986, in which the complainant requested his intervention. They were protesting against the dismissal of trade union activists and officials following a strike at the Youssoufia Phosphates Undertaking (Province of Safi), against the occupation of the premises of the Moroccan Federation of Labour (UMT) by the police and against the arrests, on 24 January 1986, of the Secretary-General of the UMT branch office, Mr. Mestour, and five other trade union activists, Mr. Attochi, Mr. Anzar, Mr. Zabri, Mr. Belhaj and Mr. Moghir, on 28 January.

&htab;188.&htab;When he received these communications, the Director-General immediately cabled the Government of Morocco requesting it to send its observations on this matter as rapidly as possible.

&htab;189.&htab;Subsequently on 10 February 1986, the complainant submitted a detailed report to supplement the information it had supplied when requesting the Director-General to intervene. It gave an account of the events leading up to the strike and the general situation. It explained that during the autumn of 1985, those workers who had decided to set up their trade union once again after a longer period of repression and intimidation, had re-elected the main office holders and the Executive, elected trade union delegates in various departments of the undertaking and drawn up a list of claims.

&htab;190.&htab;The management had reacted by refusing to have any dialogue with the trade union on its list of claims and adopted a hostile attitude towards the union delegates and activists in collusion, according to the complainant, with the local authorities. This resulted in:

- a cut in the end-of-the-year bonus of the newly elected Secretary-General of the trade union, Mr. Mestour, who had become safety and health delegate;

- the suspension of the trade union delegate, Mr. Bouharam, on 31 December 1985;

- the arrest of Mr. Attochi Mansour and Mr. Bouharam Abbes, trade union activists and delegates;

- the occupation of the UMT branch office by the police; and

- the banning of any public meeting of more than three to four people.

&htab;191.&htab;According to the complainant, the workers, in sympathy with their colleague, Mr. Bouharam, who had been suspended from office by the management on 31 December, called a strike as from 2 January 1986 in response to a call from the union Executive. Faced with this strike, the management went back on its decision to suspend Mr. Bouharam and the authorities released the two above-mentioned prisoners and evacuated the trade union premises.

&htab;192.&htab;The complainant states that as a result of this, the union Executive ordered a return to work as from 4 January. During the same period, a meeting was held at the headquarters of the local authorities, chaired by the head of the General Affairs Division, representing the Government of the Province of Safi, and attended by two members of the National Trade Union Committee and representatives of the trade union of the Youssoufia Phosphates Undertaking. During this meeting, the authorities undertook to pardon the action and persuade the management to open a dialogue, as borne out by a letter from the Governor.

&htab;193.&htab;The management, however, far from meeting these requests, retorted by dismissing 49 workers, including three trade union officials, which resulted in a general protest strike as from 14 January. The complainant adds that the authorities and the management reacted strongly and that as a result:

- the Secretary-General of the trade union was arrested on 24 January;

- the trade union premises were occupied once again by the police;

- workers were requisitioned;

- strikers were attacked by the police;

- people's homes were forcibly entered;

- about 40 strikers were arrested; after spending the night of 24 January 1986 at the headquarters of the local authorities, they were brought before the Governor who asked them to state their preconditions for the workers returning to work. The management, expecting that the workers would be intimidated, continued to disregard the free exercise of trade union rights.

&htab;194.&htab;The complainant states that after it had sent many telegrams of protest and issued press statements recounting the dispute, it was received by the Minister of Energy and Mines. The UMT related to him the major reasons behind the strike and the dismissal of 49 workers and pointed out that work would only be resumed once the dismissed workers were reinstated and the detained trade unionists released. It also submitted a list of its claims in this dispute to the Minister. The complainant states that the Minister, having read the file, seemed understanding and promised to intercede with the management.

&htab;195.&htab;The complainant attaches several documents to its written communications: - an explanation of the end-of-year bonus granted on the basis of the official's "professional qualities" in his performance report, which the management often used as a means of bringing pressure to bear against any participation in trade union activities and as a means to favour those persons who were the most submissive to the methods of the hierarchy;

- a summary of the workers' claims which centered on: (1) the recognition of the right to organise; (2) the revision of job scales ("job" implying work carried out by six to eight persons paid on the basis of the team's performance, multiplied by a co-efficient of difficulty during eight hours; this means that for an acceptable wage, teams must work from 12 to 14 hours per day), the generalisation of statutory wage increases to all categories and scales of staff, improvements in occupational safety and health and improvements in transport services;

- figures showing that out of a total of 6,000 wage earners, including 5,600 manual workers, 4,500-5,000 persons went on strike;

- finally, a list giving the names of the 46 workers who had been dismissed and a description of the trade union duties of three of them; it also named three foremen and administrative officers who had also been dismissed, according to the management, for failing to observe safety instructions, refusing to carry out work included in their job descriptions and damaging equipment.

&htab;196.&htab;In this same communication of 10 February 1986, the complainant also declares that the strike was continuing.

&htab;197.&htab;In a later communication dated 15 April 1986, the complainant points out that, to avoid the worst, the workers had ended their strike on 12 February 1986 without, however, giving up their legitimate claims. It adds that the Secretary-General of the trade union was still in custody without having been tried, that the trade union premises were still occupied by the police and that in spite of inadequate safety and health conditions, the teams doing particular "jobs" were still working from 12 to 14 consecutive hours per day in the galleries, although the statutory workday was eight hours.

&htab;198.&htab;All these communications were sent to the Government for its observations on the matter.

&htab;199.&htab;In a reply dated 9 May 1986, the Government stated that the strike called on 28 December 1985 at the Youssoufia Phosphates Undertaking continued on 2 and 3 January 1986 and that the mine face was occupied as a protest against the arrest of several workers on the grounds of their having disturbed public law and order.

&htab;200.&htab;The Government admitted that following the release of the arrested workers, work was resumed on 4 January 1986. However, it claims that this return to work took place in a very tense atmosphere, as the mine authorities had discovered that equipment had been sabotaged and damaged. For instance:

- several worksites had caved in;

- several telephones and lighting systems had been cut;

- site conveyors had been stopped;

- the automatic functioning of one of the pumping stations had been interfered with;

- a machine was left running on the face until it had run out of petrol;

- several rivet-drifts in the galleries had been destroyed.

&htab;201.&htab;The Government continues by stating that in spite of the fact that work was resumed, the staff did not carry out its normal activities and failed to observe safety instructions. They were therefore guilty of lack of safety measures, voluntary idleness, failure to respect the work schedule and refusal to transfer. The Government concedes that, confronted with this situation, the authorities of the mine had taken sanctions against 49 officials who were dismissed.

&htab;202.&htab;It added that as from 14 January 1986, 1,937 workers out of the 3,043 involved in extraction and processing work went on strike for an unlimited period. Furthermore, according to the Government, 700 strikers occupied the pit as from 15 January 1986.

&htab;203.&htab;However, the Government explained that following a meeting of the Staff and Regulations Committee on 18 January, the last workers occupying the pit returned to the surface on 20 January; the strike nevertheless continued. The Government points out that during the time the workers occupied the pit, they were regularly examined by the doctors of the Youssoufia Phosphates Undertaking.

&htab;204.&htab;The Government also acknowledged that at the request of the staff representatives, a meeting had been held on 28 January 1986 under the chairmanship of the public authorities. However, it noted that although this meeting made it possible to assess the situation, it did not result in any compromise; the staff representatives demanded that the 49 dismissed officials be reinstated before work was resumed, but the management representatives rejected this solution. They nevertheless pledged, after work was resumed, to study, case by case, the files of the dismissed workers.

&htab;205.&htab;Finally, the Government stated that the situation at Youssoufia had also been referred to during the talks, held on 4 February 1986, between the Minister of Energy and Mines and the members of the National Co-ordinating Committee of the UMT and several UMT staff representatives from Youssoufia and Khouribga. On this occasion, the Minister had recalled the steps taken by his department to try and overcome difficulties through dialogue both at the central and local level. He had also invited the members of the Committee to approach the workers with a view to their returning to work and he assured them of the willingness of his department to continue its efforts to find a solution to the problems in conformity with legislation.

&htab;206.&htab;The Government added that meanwhile and alongside these steps, work was gradually resumed during the first days of February; it confirmed that as from 12 February, the Youssoufia mine had been operating as usual.

&htab;207.&htab;The complainant, to whom the Government's reply had been communicated, stated, in a communication dated 8 December 1986, that it regretted and disapproved of the tendentious nature of the Government's reply.

&htab;208.&htab;As regards the mass dismissal of 49 workers, the complainant noted that the Government referred to the lack of safety, interference in the automatic functioning of the pumping station, cuts in the telephone and lighting system and, in addition to all this, the caving in of several worksites.

&htab;209.&htab;According to the complainant, these statements were even more astonishing in view of the fact that they concerned the very safety of the miners themselves. In its opinion, such actions, if they indeed took place, would imply that the miners were driven by a desire for mass suicide and that there were several persons with pathological behavioural patterns in their midst. According to the UMT the first assumption was implausible; as for the isolated cases of "destructive madness", these would not have been held in check until the outbreak of a trade union dispute. Furthermore, persons liable to endanger the community by sabotaging safety equipment, even if they existed, which the complainant denied, would certainly not have been trade union officials and activists. The complainant stressed that the miners had provided throughout the strike a permanent service to control and maintain extraction and evacuation equipment, which had enabled a return to normal production on the very day that work was resumed on 4 January.

&htab;210.&htab;The complainant also denied the accusation that acts of sabotage had occurred - which would suggest a latent anarcho-syndicalist tendency - and that the workers were incapable of conducting trade union activities in a capable and responsible way which, according to the UMT, was not the case. In actual fact, the only reason for the collective dismissal was the refusal to acknowledge a legally constituted trade union.

&htab;211.&htab;According to the complainant, since 1966, the management of the Youssoufia Phosphates Undertaking had refused to recognise the right to organise within the undertaking: the members of six trade union Executives had been dispersed throughout various mining centres as a "disciplinary measure" to prevent any co-ordination and trade union action; furthermore, joint committees with extremely limited functions and only an advisory role had been substituted for the Phosphate Workers' Trade Union. This process made it possible to undermine the problems common to workers in the Youssoufia Phosphates Undertaking.

&htab;212.&htab;The complainant added that as at 9 December 1986, the trade union premises in Youssoufia were still occupied by the police and the number of dismissed workers had increased, because there were now 80 trade union activists and officials in this situation.

&htab;213.&htab;In addition, in a communication dated 10 December 1986, the complainant denounced the removal from office of Mr. Mestour, Secretary-General of the UMT union of the Youssoufia Undertaking and safety and health delegate. It explained the reason for this removal from office. In a letter dated 25 October 1986, the management informed the person concerned of his dismissal on the grounds of his extended absence from 25 January 1986 onwards, pointing out that he was considered as having resigned on that date. The complainant explained that the Secretary-General of the trade union had indeed taken part in the strike called on 14 January 1986 and, for this reason, he had been absent from his work. He was unable to go back to his job after work was resumed on 12 February, because he was under arrest and only released after being held in custody for three months without a trial.

&htab;214.&htab;Finally, in a communication dated 12 January 1987, the complainant repeated its request for the reinstatement of the dismissed workers, the evacuation of the trade union premises and respect of the right to organise. It formally requested that the matter be submitted to the Committee on Freedom of Association.

&htab;215.&htab;In addition to the first matter, the UMT stated in a telegram, dated 26 November 1986, that the Itma Plastics undertaking of Mohammedia had dismissed 16 workers, including the whole of the trade union Executive, after the trade union Executive had been set up in accordance with legal procedures.

&htab;216.&htab;The Committee notes that the allegations in these two matters concern victimisation of workers seeking to exercise their trade union rights.

&htab;217.&htab;It also notes that although the Government replied to the UMT's first allegations concerning the labour dispute which took place in the Youssoufia Phosphates Undertaking, it did not comment on and therefore did not refute the additional allegations and new observations made by the complainant on this first issue.

&htab;218.&htab;In this respect, the Committee notes that the facts given by the complainant and the Government are, in part, contradictory. On the one hand, the complainant considers that this dispute, undertaken to gain recognition for the right to organise and to have a list of demands met, led, after a strike of several days, to the dismissal of 80 trade union activists and officials, the imprisonment without trial of the Secretary-General of the local UMT union for three months and his dismissal, to the arrest of several trade union officials and to the occupation of the Youssoufia UMT trade union premises without, in spite of this, those concerned being awarded any of their occupational demands. On the other hand, the Government, which apparently tried - but in vain - to reach a solution to this dispute through dialogue, considers that the workers in question were guilty of acts of sabotage, which led to their dismissal.

&htab;219.&htab;The Committee notes both the Government's arguments and those of the complainant, especially the complainant's denial of the Government's statement concerning the sabotage of equipment. In particular it notes that according to the complainant, the miners stated that they were not driven by collective suicidal tendencies and that, throughout the duration of the strike, they had provided a permanent service to control and maintain the extraction and evacuation equipment, which had enabled normal production to be resumed on 4 January, the day the workers returned to work.

&htab;220.&htab;The Committee also notes that the Government did not deny the allegations concerning the imprisonment without trial of the Secretary-General of the local UMT and his dismissal; neither did it deny the occupation of the UMT trade union premises of Youssoufia.

&htab;221.&htab;Finally, the Committee notes with regret that, in spite of the time which has elapsed since the UMT submitted its second complaint (in November 1986), the Government has not made any comment on the labour dispute at the Itma Plastics undertaking and that, consequently, it has not refuted the allegations of the complainant in this matter, denouncing the dismissal of the whole of the trade union Executive after it had been set up.

&htab;222.&htab;The Committee notes with concern that it is called upon frequently to examine complaints concerning victimisation of workers seeking to exercise their trade union rights in Morocco [see, for instance, Cases Nos. 992, 1017 and 1116 (Morocco)].

&htab;223.&htab;As regards the strike called by the workers to try and settle the labour dispute at the Youssoufia mine, the Committee recalls that it has, on several occasions, declared that peaceful strike action is one of the essential means available to workers and their organisations for the promotion and defence of their occupational demands. In the present case, it would seem that the demands were of a purely occupational nature and that, consequently, recourse to strike action was legitimate.

&htab;224.&htab;As regards the removal of the UMT Secretary-General of Youssoufia and the dismissal of trade union officials, including the founder members of several trade union Executives both at the Youssoufia Phosphates undertaking and the Itma Plastics undertaking, the Committee recalls the importance it attaches to the principle that workers and workers' organisations should have the right to elect their representatives in full freedom and that such representatives should have the right to present the demands of the workers [see 22nd Report, Case No. 148 (Poland), para. 94]. It follows that one of the basic principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination such as dismissal, transfer, demotion and other prejudicial measures, and that this protection is particularly desirable in the case of founders of a trade union, trade union officials and delegates, 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 their trade union position.

&htab;225.&htab;As regards the occupation of the UMT premises at Youssoufia, the Committee recalls that an occupation of this nature, without a legal warrant, may constitute a serious interference by the authorities in trade union activities [see, for instance, 204th Report, Case No. 962 (Turkey), para. 257 and 208th Report, Case No. 1025 (Haiti), para. 418].

&htab;226.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (a) The Committee expresses its concern at the imprisonment without trial for three months of the UMT Secretary-General of Youssoufia, Mr. Mestour, at the arrests - albeit of short duration - of several trade union officials, at the dismissal of many trade union activists and officials, including the founder members of trade union Executives, and at the occupation of trade union premises.

(b) It recalls that a free and independent trade union movement cannot develop in a climate of insecurity and fear.

(c) While noting that the Government has already attempted, although in vain, to reach a solution to the labour dispute in the Youssoufia mine, it requests the Government to continue its efforts for the reinstatement of the trade union leaders and officials dismissed because of the strike and other trade union activities both in Youssoufia and Mohammedia; and also requests the Government to put an end to the occupation of the UMT trade union premises in Youssoufia and to keep it informed of the effect given to its recommendations.

(d) The Committee also requests the Government to take appropriate action for the reinstatement of the members of the executive committee of the trade union at the Itma Plastics undertaking and to ensure that trade union rights can be effectively and fully exercised in that enterprise. It requests the Government to keep it informed of developments in this situation.

&htab;227.&htab;The complaint is contained in a communication from a trade union named "El Mochito" (SOEM) dated 13 March 1987. The Government submitted its observations in a communication dated 16 June 1987.

&htab;228.&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;229.&htab;In its communication of 13 March 1987, the SOEM alleges that the management of the mining company Rosario Resources Corporation harassed workers and their representatives with a view to destroying the trade union organisation which represents them. The company set up shock units and dismissed workers for symphathising with the trade union, thereby infringing the collective labour agreement drawn up between the parties, which establishes procedures for laying off staff.

&htab;230.&htab;The SOEM points out that the company selectively dismissed workers connected with the trade union, as in the case of Cristóbal Almendárez and Eva Ríos, trade union officials who were dismissed for no apparent reason. The Rosario Resources Corporation also downgraded several workers to lower posts, with less wages, which, in accordance with legislation in force, is tantamount to an indirect dismissal. This, for example, happened to Maximiliano Salinas. The SOEM adds in its communication that the Rosarios Resources Corporation, as from 1 January 1987, withheld more than 30,000 Lempiras (L30,000) belonging to the trade union, allegedly to pay the trade union contribution and loans, with a view to paralysing the trade union financially.

&htab;231.&htab;As regards the official recognition of the SOEM's executive committee, the communication adds that, in January 1987, the Ministry of Labour issued a certificate stating that as long as there were two executive committees and that neither had been legally recognised, the executive committee which completed its term of office on 31 December last year would continue to carry out its functions. However, the company refused to accept the Ministry of Labour's certificate, stating that it was invalid.

&htab;232.&htab;As regards the collective agreement signed between the workers and the company, it was mentioned that the company had not fulfilled the terms of article 25 of the agreement signed with the workers, according to which "the company, acknowledging the need to contribute towards the natural culture by training its workers and dependents, undertakes to provide a sum in legal tender for a bipartite committee composed of the company's and trade union's representatives, set up to promote secondary, technical and university education". As regards the agreement concluded by the company to provide housing for the workers, the communication states that claims for improvements and building of housing, in accordance with the worker's needs, had been disregarded.

&htab;233.&htab;Finally, the SOEM states, in its communication, that medical assistance, towards which workers contribute with a 2.5 per cent reduction in their net wage, has deteriorated since 1980.

&htab;234.&htab;The communication concludes by requesting the Government to instruct the Ministry of Labour to take legal measures against the above-mentioned company in order to settle the problems affecting the workers.

&htab;235.&htab;In its communication of 16 June 1987, the Government states that it has tried to attend to all the claims put forward by the trade union "El Mochito" and that on many occasions, the Secretary of Labour and Social Welfare has ordered staff members of the Labour Inspectorates to go on the spot to investigate allegations made by the SOEM, in an immediate attempt to reconcile the parties involved and to settle the problems raised by meeting and discussing with trade union officials.

&htab;236.&htab;In its communication, the Government points out that the President of the Republic received the company's management and workers' representatives and that it undertook to grant a subsidy which would benefit all workers affected by the strike decreed in the Rosario Resources Corporation at the "El Mochito" workplace, half-way through 1986.

&htab;237.&htab;In its communication, the Government points out that the Rosario Resources Corporation has closed down and that, in accordance with the labour legislation in force, the corporation has, to date, paid all the corresponding benefits to the workers engaged by it.

&htab;238.&htab;Finally, the Government points out that there are strong possibilities that at least half of the workers laid off as a result of the closure of the Rosario Resources Corporation will be recruited by the other company negotiating the purchase of the "El Mochito" mine. The Government also sends copies of the records on the inspection carried out by the staff of the General Labour Inspectorate and official documents stating that the President of the Republic fulfilled his commitment to pay a subsidy to the workers, which bear witness to the good faith of the Government's efforts; it adds that it will send any information it receives on the number of workers recruited by the new company.

&htab;239.&htab;The Committee notes that in the present case the complainant has submitted allegations in connection with the selective dismissals of workers sympathising with the trade union "El Mochito"; it also alleges that the company held back funds belonging to the trade union, that it did not recognise the trade union executive and that it failed to fulfil the commitments entered into in the collective agreement concluded between the employer and workers.

&htab;240.&htab;The Committee notes the efforts made by the Government to try and resolve the problems alleged by the complainant, particularly its attempts to reconcile the parties, the inspections carried out by staff of the labour inspection offices at the workplaces and the meeting the President of the Republic held with representatives of the company and trade union officials of the SOEM.

&htab;241.&htab;However, the Committee notes that, at the time the complaint was submitted (March 1987), the trade union "El Mochito" was still encountering problems with the mining company Rosario Resources Corporation.

&htab;242.&htab;In these circumstances, the Committee feels bound to draw attention to certain principles which are relevant to the allegations submitted by the complainant. As regards the dismissal of trade unionists, the Committee, noting the allegation that the company infringed the clauses of the collective agreement relating to cuts in staff, feels bound to recall generally that, in accordance with Article 1 of Convention No. 98, ratified by Honduras, workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Similarly, the Committee would recall that the basic regulations that exist in the national legislation of Honduras prohibiting acts of anti-union discrimination are inadequate when they are not, as in the present case, accompanied by procedures to ensure that effective protection against such acts is guaranteed.

&htab;243.&htab;As regards the company's failure to acknowledge the temporary recognition by the Ministry of Labour of one of the two trade union's executives, the Committee would point out that the complainant has not supplied sufficient information to determine which of the two executive committees is the legitimate one. In this connection, the Committee would recall the principle that recognition by an employer of the main unions represented in his undertaking, or the most representative of those unions, is the very basis for any procedure for collective bargaining on conditions of employment in his undertaking.

&htab;244.&htab;Finally, the Committee takes note of the information provided by the Government on the closure of the mining company Rosario Resources Corporation and that negotiations are taking place with another company for the purchase of the "El Mochito" mine.

&htab;245.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee considers that the Government should adopt measures to permit the effective application of the provisions designed to protect workers against acts of anti-union discrimination. (b) The Committee requests the Government to keep it informed of the number of workers who are reinstated by the new company in the "El Mochito" mine, and the manner in which trade union rights are exercised in the new company.

&htab;246.&htab;The Committee last examined Case No. 1190 at its meeting in May 1986 when it presented an interim report to the Governing Body [see 244th Report, paras. 276 to 295, approved by the Governing Body at its 235th Session (May-June 1986)]. The Committee had previously examined the case in May 1984 and in May 1985, when it likewise presented interim reports to the Governing Body [see 234th and 239th Reports, paras. 500 to 520 and 226 to 242, respectively, approved by the Governing Body at its 226th and 230th Sessions (May-June 1984 and May-June 1985)].

&htab;247.&htab;Following the latest examination of the case in May 1986, the Government sent a communication dated 9 October 1986 with information on certain aspects of the case, indicating that as soon as it received additional information from the judicial authorities it would transmit this to the Committee.

&htab;248.&htab;At its meeting in February 1987, the Committee indicated that it was awaiting receipt of the additional information referred to [see 248th Report, para. 7].

&htab;249.&htab;Not having received any further information from the Government since then, the Committee, at its meeting in May 1987, drew the Government's attention to the fact, in conformity with the procedural rules set out in paragraph 17 of its 127th Report approved by the Governing Body, it would present a report at its next meeting on the substance of the case even if the Government's observations or information were not received in time. The Committee accordingly requested the Government to transmit its observations as a matter of urgency [see 251st Report, para. 13]. No further observations have so far been received from the Government.

&htab;250.&htab;Peru 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;251.&htab;When the Committee examined Case No. 1190 at its meeting in May 1986, it submitted the following recommendations to the Governing Body on the outstanding issues [see 244th Report, para. 295, approved by the Governing Body at its 233rd Session (May-June 1986)]:

&htab;As regards the arrest of 84 persons as a result of the national strike of 10 March 1983, the Committee again requests the Government to provide information on their situation and, in particular, to indicate whether these 84 persons are still under arrest, if they have been tried and sentenced, or released.

&htab;With regard to the arrest of three leaders of the CGTP who had apparently been jailed as a result of the national strike of 10 March 1983, namely Jorge Rabines Bartra, Hernán Espinoza Segovia and Juan Calle Mendoza, the Committee again requests the Government to indicate whether these persons were in fact arrested, if they are at present under arrest of if they are free.

&htab;252.&htab;In its communication dated 9 October 1986, the Government stated that Jorge Rabines Bartra and Juan Calle Mendoza were listed as "not detained" in the report presented by the Fourth Criminal Prosecutor's Office to the 19th Magistrate's Court in Lima. The Government added that in the report there was no mention of any proceedings being taken against Mr. Hernán Espinoza Segovia and that as soon as it received additional information on the outstanding allegations it would transmit it to the Committee.

&htab;253.&htab;Before examining the substance of the case, the Committee considers that it should recall the considerations which it set out in its First Report [para. 31] and which it has had occasion to repeat on numerous occasions:

&htab;The Committee its convinced that, if the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance for their own reputation of formulating, so as to allow objective examination, detailed factual replies to the allegations brought against them.

&htab;254.&htab;The Committee greatly regrets that the Government has not sent all the information requested by the Committee and that, owing to the length of time that has elapsed, it is now obliged to examine the case without the benefit of having all the facts at its disposal.

&htab;255.&htab;The Committee notes that the allegations pending refer to the detention of 84 trade unionists and of trade union leaders Hernán Espinoza Segovia, Jorge Rabines Bartra and Juan Calle Mendoza as a result of the national strike held on 10 March 1983. The Committee notes that, according to the information supplied previously by the Government, Hernán Espinoza Segovia has not been indicted and that Jorge Rabines Bartra and Juan Calle Mendoza are listed as "not detained" in the report presented to the 19th Magistrate's Court in Lima. The Committee requests the Government to provide additional information on the situation of these two trade union leaders (specifying whether they have been charged and the stage the proceedings, if any, have reached) and to send specific observations concerning the alleged detention of 84 trade unionists.

&htab;256.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee greatly regrets that once again the Government has not sent all the information requested on the outstanding allegations (detentions as a result of the national strike of March 1983).

(b) The Committee requests the Government to provide additional information on the situation of trade union leaders Jorge Rabines Bartra and Juan Calle Mendoza (specifying, in particular, whether they have been charged, and the stage the proceedings, if any, have reached) and to send specific observations concerning the alleged detention of 84 trade unionists.

&htab;257.&htab;The Committee has examined this case on several occasions, most recently at its February 1987 meeting, when it presented an interim report to the Governing Body [see the 248th Report, paras. 437-492, approved by the Governing Body at its 235th Session (March 1987)].

&htab;258.&htab;Subsequently, the ILO received the following communications from the complainants: Professional Association of Teachers of Chile (AGECH): 17 February 1987; World Confederation of Organisations of the Teaching Profession (WCOTP): 19 February and 3 April 1987; International Confederation of Free Trade Unions (ICFTU): 12 and 26 March, 14 April, 10, 12 and 22 October 1987; National Confederation of Trade Unions of Leather and Shoe Workers (ex FONACC): 21 April 1987; Unity Confederation of Chilean Workers (CUT): 9 June 1987; the National Confederation of Textile and Allied Workers' Federations and Trade Unions of Chile (CONTEXTIL): 25 August 1987; the National Confederation of Trade Unions, Federations and Associations of Chilean Workers in the Private Sector (CEPCH): August 1987; International Federation of Plantation, Agricultural and Allied Workers: 30 September 1987. The Government transmitted observations in communications of 26 February, 18 May and 15 September 1987. Shortly before its meeting, the Committee received observations from the Government dated 26 October 1987 and concerning the CUT's allegations, which will be examined at its next meeting in February 1988.

&htab;259.&htab;Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;260.&htab;During the most recent examination of the case, several allegations presented by the WCOTP, the ICFTU and several national confederations remained pending.

&htab;261.&htab;In a joint communication, several Chilean national confederations reported that unidentified persons had visited the homes of Manuel Caro Castro and Enrique Avendaño Atenas, leaders of the Catering Confederation and the El Sucro Peasants' Confederation, respectively.

&htab;262.&htab;The WCOTP alleged that Beatriz Brikmann Scheihing had been detained since 24 September 1986, and referred to the adoption by the Ministry of the Interior of Decree (No. 1766) of 28 May 1986 concerning the reduction of the number of teachers in municipal schools, which the WCOTP alleges was used as a pretext to dismiss well-qualified teachers because of their trade union activities.

&htab;263.&htab;In support of these allegations, the WCOTP supplied a list of 55 leaders of the Professional Association of Teachers of Chile (AGECH) and 15 leaders of the Teachers' College of Chile who were dismissed. It also supplied the breakdown, by province, of the number of dismissed teachers, which had then reached 3,835.

&htab;264.&htab;For its part, the ICFTU attached to its communication a report prepared by the Centre for Trade Union Research and Assistance concerning events which took place during the celebration of Labour Day in Santiago on 1 May 1986 and, in particular, on the illegal search of the premises of the Confederation of Textile and Clothing Workers (CONTEVECH), and of the homes of several national trade union leaders.

&htab;265.&htab;At its March 1987 Session, the Governing Body approved, among others, the following recommendations of the Committee:

(a) the Committee requests the Government to supply more detailed information on the charges brought against Mrs. Beatriz Brikmann Scheihing;

(b) the Committee requests the Government to supply its observations on the search of the premises of the Confederation of Textile and Clothing Workers and of the homes of several national trade union leaders, as well as on the dismissals allegedly carried out for trade union activities in the teaching sector.

&htab;266.&htab;In a communication of 17 February 1987, the AGECH supplies a list of 81 AGECH leaders and 75 leaders of the Teachers' College of Chile who had been dismissed prior to 18 February, as well as a report on the geographical distribution of dismissed teachers, whose number has now reached 7,812.

&htab;267.&htab;In its communication of 19 February 1987, the WCOTP reports that on 16 February 1987,  Luis Muñoz, a trade union leader of the Teachers' College of Chile in Valparaiso, received an anonymous telephone call informing him that unless he and Andrés Reyes of the AGECH, Hugo Guzmán, leader of the Teachers' Trade Union of Viña del Mar, María Isabel Torres, leader of the Fifth District Teachers' College, Sergio Narváez and Florencio Valenzuela, president of the Workers in Commerce Trade Union, left the country before the month of March, action would be taken against them and their families; he interpreted this as a threat to their lives.

&htab;268.&htab;In a communication of 3 April 1987, the WCOTP sends two new lists of teachers' trade union leaders who were dismissed under the Ministry of the Interior's Official Letter No. 1766 of 28 May 1986: the first list contains the names of 25 leaders of the Teachers' College, and the second the names of 57 leaders of the Professional Association of Teachers of Chile (AGECH). Both lists refer to the situation as at 1 March 1987.

&htab;269.&htab;The International Confederation of Free Trade Unions (ICFTU), the International Federation of Free Teachers' Unions (IFFTU) and the Teachers' College of Chile state in a communication of 12 March 1987 that in 1981 the Government had undertaken an administrative reform of the Chilean educational system with the aim of transferring responsibility for and control over educational institutions from the Ministry of Education to the municipalities. This has resulted in a drastic change in the labour situation of Chilean teachers, and has been accompanied, in particular, by amendments to labour legislation which have the effect of subjecting teachers to market forces, to the detriment of previously won guarantees, stability and benefits. These measures are designed to reduce and fragment the Chilean teaching profession, as evidenced by the fact that more than 65 per cent of the dismissed teachers are accredited teachers with vast experience, many of whom held local trade union office in the Teachers' College; clearly, the intent is to limit the organisational capacity of the trade union.

&htab;270.&htab;In its communication of 26 March 1987, the ICFTU alleges that on 25 March 1987 a peaceful national mobilisation of workers, convened by the National Grouping of Workers (CNT) to request an increase in wages, an end to the massive dismissals of teachers, an end to the privatisation of nationalised enterprises, and respect of human and trade union rights, was violently broken up by police forces; among the injured were Manuel Bustos, Vice-President of the CNT, and Rodolfo Seguel, President of the CNT, who was later arrested along with Manuel Rodríguez and Luis Suárez, leaders of the same organisation.

&htab;271.&htab;In its communication of 14 April 1987, the ICFTU sends additional information alleging the arrest of three leaders of the Teachers' College: Osvaldo Verdugo, Luis Cisternas and Pedro Soto, along with nine professors of the Santiago Centre, following a peaceful demonstration organised by the teachers on 26 February 1987 in front of the Ministry of Education to protest the massive dismissals.

&htab;272.&htab;The ICFTU attaches to its communication a list of 83 leaders of the Teachers' College who have been dismissed, as well as a statistical table comparing the information furnished by the Ministry of Education and that furnished by the Teachers' College with respect to the number of teachers dismissed nationally, and a document prepared by the Education Committee of the Teachers' College containing critical observations and proposals in connection with the Ministry of the Interior's Official Letter No. 1766 of 28 May 1986 on the measures to be taken by municipalities with a view to reducing budgetary deficits in the educational sector.

&htab;273.&htab;In its communication of 21 April 1987, the National Confederation of Trade Unions of Leather and Shoe Workers (ex FONACC) alleges that the promulgation of Legislative Decree No. 2758 of 1979 on collective bargaining revoked a national collective agreement which had regulated labour relations among workers and employers in the leather and footwear industry for 25 years, thereby threatening to dispossess by administrative authority the workers of their rightful property.

&htab;274.&htab;The communication reports that since 1955, employers have been under the obligation to contribute a sum equal to 20 per cent of their wage bill to an Occupational Benefit Fund, which had been administered exclusively by the workers since 1968. In 1961 the Fund purchased a construction and leasing enterprise (SOCORE), with a view to relieving the housing problems of leather and shoe workers. The workers are the only shareholders in this enterprise, which is managed by persons elected by the shareholders for this purpose. Sections 15 to 19 of Act No. 18018, promulgated on 14 August 1981, called for the dismantling of the Benefit Fund and appointed the Directorate of Social Security as liquidator; they further provided that the 20 per cent contribution which had theretofore been made to the Fund should be used to increase the wages of workers. As at the date of the Fund's liquidation (14 August 1981), the employers owed contributions in the amount of 55 million pesos (US$275,000), plus re-adjustments and interest. The communication states that these monies belong to the workers. The communication adds that, as at that date, neither the liquidation nor the wage increase had been carried out, because the Directorate of Social Security claimed that it was unable to liquidate the Fund while it did not have control of the SOCORE enterprise which, it contends, belongs to the Fund. The workers have repeatedly stated that the SOCORE enterprise and the Fund are two separate entities and are thus governed by different laws.

&htab;275.&htab;The communication of the National Confederation adds that upon the termination of the national collective agreement and of the Benefit Fund, the enterprise will be forced into liquidation owing to a lack of revenue. The liquidation was approved at a special meeting, which appointed a liquidating committee which has already undertaken the corresponding measures. This decision of the directors of the enterprise (who are also directors of the Confederation) to go into liquidation was declared null and void on 7 October 1986 by the Securities and Exchange Commission - the body which currently controls the enterprise; its ruling was appealed by the enterprise's directors who requested the Court of Appeals to issue a restraining order, but none has yet been handed down.

&htab;276.&htab;The National Confederation concludes by stating that if the Directorate of Social Security succeeds in gaining control over the SOCORE enterprise, it would take possession of the property of the National Confederation; while the proceeds of the liquidation would be turned over to the workers, the liquidation would effectively destroy the trade union organisation of workers in this sector.

&htab;277.&htab;In its communication of 9 June 1987, the Unity Confederation of Chilean Workers (CUT) furnishes new information concerning the complaints presented by the ICFTU, WCL, WFTU, IFFTU and WCOTP.

&htab;278.&htab;The CUT alleges the infringement of certain trade union rights and reports the following events:

- the murder of José Carrasco Tapia, a trade union leader of the Metropolitan Journalists' Council on 10 September 1986, as evidenced by the action for relief filed on 12 September 1986 before the Court of Appeals of Santiago (Complaint No. 295-86);

- the arrest and ill-treatment of the President of the National Grouping of Workers (CNT), Rodolfo Seguel, of Jorge Pavez, President of the Professional Association of Teachers of Chile (AGECH), and of Guillermo Azula, national leader of the AGECH, on 24 March 1987, during a peaceful demonstration for the reinstatement of 8,000 teachers dismissed in 1987;

- the imprisonment in the Santiago Penitentiary of the following miners: Domingo Alvial Mondaca, Adrián Cabrera R., José Delgado Z., Pedro Lobos P., Dagoberto López R., Ricardo Mondaca G., Mario Santibáñez, Emilio Vargas M., Raúl Vásquez I., Domingo Araya C., Armando Irrazábal C., Sergio Jeria I., Jean Jorquera I., Erasmo Mayolinca Ch., Marcos Sala B., Leonardo Torres G. and Yuri Vargas A., for participating in protest days calling for the respect of labour rights and denouncing tragic accidents in coal mines;

- appeals for relief filed by the leaders of the Federation of Trade Unions of Self-employed and Temporary Workers before the Court of Appeals on 23 July 1986, to denounce the assault against Angel Arriagada Arriagada, a leader of the federation, on 16 April 1986, and the search of the trade union office and the home of trade union leader Alejandro Olivarez Pérez, on 1 May 1986;

- the attempted homicide of Juan Espinoza, a national trade union leader of the Confederation of Maritime Workers (CONGEMAR), when his house was set on fire while he and his family were sleeping, in January 1987; - refusal to allow entry to the country to several CUT trade union leaders, and the arrest of former trade union leaders Luis Guzmán, who is being illegally detained at the Santiago Penitentiary for having entered the country without the Government's prior authorisation in early 1984, and Mireya Baltra, a former national trade union leader of the CUT, who was illegally arrested in Puerto Aysén for having entered the country on 13 May 1987; the arrest and disappearance of Sergio Ruíz Lazo, a former textile trade union leader, after having entered Chile in 1985. The Government also continues to refuse entry to the country of many trade unionists including: Rolando Calderón Aranquiz, former Secretary-General of CUT, and Hernán del Canto Riguelme, Luis Meneses Aranda, Mario Navarro Castro, Bernardo Vargas Fernandez, all former CUT national leaders.

&htab;279.&htab;The CUT concludes its communication by denouncing the massive dismissal of 8,000 primary and secondary school and university teachers, including 81 national and regional trade union leaders of the AGECH, and 77 national and regional leaders of the Teachers' College, alleging that the Government plans to raise the number of dismissed teachers to 27,000 during the course of this year.

&htab;280.&htab;In a communication of 25 August 1987 the National Confederation of Federations and Trade Unions of Chilean Textile and Allied Workers (CONTEXTIL) describes the situation of workers at the Baby Colloky enterprise who, having endeavoured unsuccessfully for 12 years to resolve with management their wage, labour and social problems, decided on 20 June 1987 to incorporate all their claims in a collective agreement. The enterprise rejected all these requests, declaring them illegal, and refused to engage in discussions with, or to recognise, the workers' representatives who comprised the Bargaining Committee, in violation of section 355 of the Labour Code. The communication also states that the management of the Baby Colloky enterprise began to transfer machinery and personnel from another of its plants in order to replace workers who were legally on strike. Lastly, the communication from CONTEXTIL adds that supporting documentation setting out these facts was sent to the Labour Inspectorate and to the Ministry of Labour and Social Welfare, but that no reply had been received as the strike entered its 18th day.

&htab;281.&htab;In its communication of August 1987 the National Confederation of Trade Unions, Federations and Associations of Chilean Workers in the Private Sector (CEPCH) denounces a situation which it claims arises from certain legal provisions enacted by the Chilean Government which, in its opinion, are contrary to the principles of freedom of association. The CEPCH states that it held its Fourth National Congress in June of this year; in accordance with the Confederation's by-laws, it proceeded to elect the 11 members of its National Board and appointed those candidates who received the greatest number of votes. The election was carried out democratically, and was supervised by a representative of the labour authorities, acting in an official capacity. Following the election, the newly elected trade union leaders were summoned to appear before the Provincial Labour Office of Santiago for the purpose of signing an affidavit concerning their political affiliations, if any. The elected trade union leaders initially refused to comply with this requirement, but finally acquiesced. The communication adds that this requirement arises from a number of provisions in Chilean legislation which make the holding of trade union office incompatible with membership in a political party. These provisions are the following:

&htab;1. &htab;Constitution of 1980

&htab;Article 19, paragraph 19: 'Trade unions and their officials shall not participate in party politics.'

&htab;Article 23, paragraph 1: 'The holding of office in a trade union shall be incompatible with militancy in a political party.'

&htab;Article 54: 'The following persons are barred as candidates for office as congressmen or senators: (item 7): Persons holding a trade union or similar office. (Last item): The provisions of this article shall apply to persons who have held any of the above-mentioned offices within a two-year period preceding the election; candidates who are not elected shall not return to the same previous office, nor be appointed to similar offices for a period of two years following the election.'

&htab;2. &htab;Act No. 18603 concerning political &htab; &htab;parties

&htab;Section 18: 'Membership in political parties is restricted to citizens registered on voting lists. Nevertheless, trade union officials are not eligible for membership in political parties.'

&htab;'Persons affiliated with a political party who join any of the institutions mentioned in the preceding paragraph, or who become trade union officials shall immediately relinquish their affiliation with such political party.'

&htab;'In the cases mentioned above, persons assuming a trade union office shall sign an affidavit concerning any possible affiliation with a political party.'

&htab;'Persons making false statements under oath shall be punished in accordance with the provisions of section 210 of the Penal Code.'

&htab;3. &htab;Section 210 of the Penal Code

'Persons guilty of making false statements under oath before the public authorities or their agents in non-litigious matters shall be sentenced to terms of imprisonment and fined in amounts ranging from 20,000 to 100,000 pesos.' Such terms of imprisonment shall range from 61 days to three years.

&htab;4. &htab;The Labour Code

&htab;Section 221: 'Persons holding trade union office: (No. 5:) Must comply with eligibility and other requirements established by the Constitution or legislation.'

&htab;Section 223, paragraph 3: 'A trade union official-elect who does not meet the requirements for trade union office shall be replaced by the person receiving the next highest number of votes, in accordance with the provisions of the foregoing paragraph.'

The CEPCH communication adds that these legal texts clearly reflect the Government's decision to make the holding of trade union office incompatible with the full exercise of civil rights, and that the compulsory and incompatibility of trade union activity with affiliation in a political party, as established in the final paragraph of article 54 of the Constitution, infringes the fundamental rights of workers and of all citizens in a democratic system. According to the complainant, this situation weakens the trade union movement and intimidates its members; it deprives the worker of public and political power and inhibits his right to express opinions and formulate labour demands, since these can be considered as political opinions. The CEPCH communication concludes by stating that the new Labour Code, which entered into force on 5 August 1987, reproduces verbatim the provisions contained in Legislative Decree No. 2756 of 1979 concerning the organisation of trade unions, and in particular section 23, which states that: "Any worker who is a member of the relevant trade union and who fulfils the requirements laid down by this Legislative Decree for office as member of the board of management shall be eligible to stand as a candidate in elections to the board"; the CEPCH argues that this represents a curtailment of freedom of association, since the workers cannot nominate their candidates in advance; moreover, if all members of a trade union are considered as candidates, the workers elected will not have been consulted previously. In these circumstances a member of the trade union elected with the greatest number of votes (an expression of the democratic will of the rank and file) may be declared ineligible for failing to sign an affidavit or for preferring to exercise in full his civil rights. Thus, this legal mechanism plainly undermines the decisions of the trade union's rank and file by disqualifying the elected official and replacing him with a worker who has received fewer votes. Lastly, the CEPCH adds that its efforts before the Ministry of Labour and Social Welfare and General Directorate of Labour Services to remedy this situation have been unsuccessful.

&htab;282.&htab;In its communication of 30 September 1987, the IFPAAW alleges that Eugenio Eduardo León Gajardo, President of the National Confederation of Chilean Peasants (CNC), was informed by the Provincial Labour Inspectorate of Santiago that he was not eligible to serve as President, despite his constitutional election at the most recent congress of the CNC, on the grounds that he had been arrested for participating in a mobilisation of workers which culminated in a strike on 2 and 3 July 1986, and was subsequently charged with a crime under the National Security Act, which entails criminal sanctions and makes him ineligible to hold office in the CNC. The Provincial Labour Inspectorate therefore informed the trade union that it should appoint the person who received the next highest number of votes in the election. The FITPAS communication adds that at the time of his arrest, Mr. León was participating in the above-mentioned mobilisation in his capacity as a trade union leader, in keeping with his organisation's objectives and his responsibilities as a trade union leader; for these reasons the CNC refuses to designate another person as its President.

&htab;283.&htab;In its communication of 9 October 1987, the ICFTU states that the Government arbitrarily refused to authorise a national day of protest called by the National Grouping of Workers (CNT) for 7 October 1987 to request the Government to comply with the economic claims of workers, and to put an end to the privatisation of enterprises. The ICFTU adds that approximately 300 persons who were participating in this day of protest were arrested, including several trade unionists, and that others suffered gunshot wounds at the hands of security forces. The communication concludes by expressing serious concern over the numerous threats to the lives of CNT leaders, and in particular its President, Manuel Bustos. In a further communication of 12 October 1987, the ICFTU reports that the Government, acting through the Ministry of the Interior, filed charges before the courts against Messrs. Manuel Bustos, Arturo Martínez and Moisés Labrana, leaders of the CNT, for having called the national work stoppage of 7 October 1987. In its communication of 22 October 1987, the ICFTU states that on 20 October 1987 the CNT leaders Manuel Bustos, Arturo Martínez and Moisés Labrana were questioned by a Judge of the Supreme Court on the order of the Ministry of the Interior and were imprisoned in the Santiago Penitentiary for having called the national work stoppage on 7 October.

&htab;284.&htab;As regards the joint letter in which several national Chilean confederations reported that the homes of Manuel Caro Castro and Enrique Avendaño Atenas, leaders of the Catering Confederation and the El Surco Peasants' Confederation, respectively, had been visited by unidentified persons, the Government states that the police investigation of these allegations found that no complaints were lodged in this connection, and that there were no warrants for the arrest of these trade union leaders, who continue to exercise their activities as usual; moreover, it has no information concerning the alleged search of the headquarters of these organisations.

&htab;285.&htab;As regards the allegation made by several national and international trade unions concerning the massive dismissal of teachers, the Government states that due to a lack of planning dating back to the 1960s, educational institutions trained more teachers than are needed in the 1980s. Consequently, in recent years educational institutions have operated with a surplus of 12,000 teachers; moreover, if the current pace of training in the universities is maintained, by 1990 the country will have a surplus of 21,000 primary-school teachers and 19,000 secondary-school teachers. The Government states that a shortage of accredited teachers in the 1960s led the schools to hire 21,000 persons who lacked teacher's training; when the Teachers' College of Chile was established, these persons were given a grace period of 12 years in which to secure proper accreditation, and were repeatedly reminded that they would no longer be able to teach after this period unless they became accredited. The Government adds that the surplus of teachers is exacerbated by the fact that a great number of teachers with more than 30 years of service have not retired, owing to poor retirement pensions. In order to correct these anomalies persons without accreditation have been barred from the teaching profession; they have been indemnified with one month's wages for each year of service (with a ceiling of six years), even though current legislation does not require the payment of this indemnity. Moreover, retired teachers who have been rehired, as well as teachers with more than 40 years of service and teachers with 30 years or more of service who are entitled to retirement have been relieved of their duties. These measures have also affected accredited teachers whose performance is considered substandard. Thus, the dismissal of teachers is not in fact an abrupt measure, but one that was widely publicised beforehand among those concerned.

&htab;286.&htab;In another communication the Government sends additional information concerning the dismissal of teachers to complement that which it submitted on 5 March 1987 to the Committee of Experts on the Application of Conventions and Recommendations concerning the application of the Employment Policy Convention, 1964 (No. 122). In this communication the Government states that Official Letter No. 1766 of 28 May 1986 of the Ministry of the Interior, alleged by several complainant organisations to have ordered the dismissal of up to 28,000 teachers in Chile, does not contain a reference to any such number of teachers. The Letter discusses the need to take lawful measures in order to place accredited teachers who have not found work within the school system because many positions are held by teachers who have been practising without credentials and teachers who have not filed for retirement in spite of their long years of service. These circumstances have made it difficult for aspiring teachers with five years of university studies to find work within the educational system. The Government's communication also states that, in recognition of the teachers' contributions to the country's social development, the Teachers' College of Chile was created on 16 October 1974 by means of Legislative Decree No. 678. At the same time the Ministry of Education issued regulations concerning the exercise of the teaching profession (Supreme Decree No. 7723/1981), as amended by Supreme Decrees Nos. 3048/1982 and 42/1984. Legislative Decree No. 678 was issued in response to the aspirations of Chilean teachers for the creation of this College; transitory section 3 (No. 2) of the Decree established a term of eight years in which persons who had been teaching without appropriate credentials for more than five but for less than ten years should become accredited or pass a special course for their regularisation. Subsequently, this term was extended to 1 September 1986. Thus, non-accredited teachers have had a term of 12 years in which to regularise their situation. Nevertheless, in an effort to avoid undue prejudice they were allowed to finish the school year and to benefit from accumulated leave entitlements even after the expiration of the above-mentioned term. Likewise, the Official Letter of the Ministry of the Interior to which the WCOTP had referred, instructed municipalities to retain those teachers who, in their opinion, had rendered distinguished service in their respective educational systems, as well as those who had worked in remote areas, with the sacrifice that this entailed. This goes to show that the measure in question is not inflexible and that it takes into account the work performed by these persons, notwithstanding the claims of certain trade unions. A teachers' census carried out by the Ministry of Education in 1985 showed that the number of non-accredited teachers was in the order of 14,500. On the basis of recent information, it is estimated that approximately 8,000 of these managed to regularise their situation. Of the remainder, approximately 2,500 work within the state educational system, and 4,000 in subsidised private education. Consequently, the measure in question is affecting approximately 2,500 persons, who have had 12 years to regularise their situation but have not done so. This number is expected to be reduced further by the provisions for flexibility outlined above. However, it should be noted that these persons occupy posts that could be assigned to accredited teachers, which would allow the country to use in full 100 per cent of accredited teachers. This is a figure which is not matched even in many developed countries. The other situation concerns approximately 2,100 teachers who have been dismissed pursuant to an administrative ordinance (Order No. 338/1960, section 235, clause f) which calls for the retirement of employees aged 65 or over, or with more than 40 years of service. Although strictly speaking the ordinance applies only to teachers in state-owned schools, it has been extended to teachers in muncipal schools with a view to promoting the integration of accredited teachers. The remaining 1,400 teachers were dismissed owing in large measure to the merger and closing of outdated and run-down educational institutions, or to those with low registration near other establishments. This figure also reflects the over-endowment of certain establishments, in contrast to others where there are shortages of teachers. Thus, most of the teachers who find themselves in this situation will be absorbed by other educational institutions which have already announced competitions to fill vacancies. Consequently, the Government concludes, the provisions in question do not affect 28,000 teachers, as claimed by the trade union organisations; moreover, they have been applied in accordance with the legal provisions in force aimed at ensuring the employment of highly qualified and accredited teachers, whose occupational integration had been hindered by the retention of teachers who were not accredited or who should have taken retirement. Likewise, certain measures have been taken to retain persons who are considered indispensable, either because of the quality of their work or in view of their long service in remote areas. The Government's communication also contains a report with statistical data which shows that the Chilean educational system has a surplus of teachers, rather than a deficit as stated in a publication of the Teachers' College.

&htab;287.&htab;As regards the allegations concerning the arrest of Beatriz Brikmann Scheihing, the Government states that this person is being tried (Complaint No. 329-86) and charged under section 8 of Act No. 17798 on arms control, which applies to those who "organise, belong to, finance, abet, assist, instruct, incite or induce the creation and operations of private militia, combat groups of militariat parties ...". Meetings were held in the home of Mrs. Brikmann for the purpose of planning and co-ordinating subversive actions, a fact that was acknowledged by Mrs. Brikmann herself to Mr. Horst Kriegler, the Consul of the Federal Republic of Germany in Concepción, during a visit he paid her in September 1986. The Government states that Mrs. Brikmann's attorneys filed an appeal for relief which was denied by the Court of Appeals on 30 September 1986; her release was requested on 31 December, but denied by the Court in accordance with section 363(c) of the Penal Procedures Code, which allows the judge to deny such a request when he considers that the applicant represents a threat to the security of society. In November 1986, Mrs. Brikmann's attorneys filed an appeal against the public prosecutor in this case; the complaint was dismissed and the ruling subsequently appealed before the Supreme Court, which dismissed the appeal and upheld the sentence on 13 January 1987.

&htab;288.&htab;As regards the inspections of the headquarters of the Confederation of Textile and Clothing Workers, the Government states that the Second Prosecutor's office is currently prosecuting a case for illegal search (Complaint No. 1595/86); since the proceedings are at the indictment stage, which is secret, additional information is not currently available.

&htab;289.&htab;As regards the arrest of Osvaldo Verdugo, Luis Cisternas and Pedro Soto, three leaders of the Teachers' College, and that of nine other teachers, the Government states that on 26 February 1987 a group of persons met before the Ministry of Education, impeding the free passage of vehicles and pedestrians. They were arrested by uniformed police for disturbing the peace; after their identities and addresses were verified, they were fined 780 pesos each and released pending a summons by the Third Police Court of Santiago. The other nine persons arrested that same day were released unconditionally shortly thereafter.

&htab;290.&htab;As regards the communication of the National Confederation of Trade Unions of Leather and Shoe Workers, (ex-FONACC), the Government reports that the "Sociedad Anónima de Construcción y Renta, SOCORE, SA" has over 3,600 shareholders; its major shareholders are the Foundation for the Social Development of the Leather and Shoe Industry which holds 31.689 per cent of outstanding shares, and the ex-Benefit Trade Union Fund for Leather and Shoe Workers, in liquidation, represented by the Directorate of Social Security, which owns 6.669 per cent of outstanding shares. The remaining shares are distributed among the office shareholders. The Securities and Exchange Commission, which oversees limited liability companies, is responsible for verifying the compliance of enterprises with applicable statutory provisions and regulations, regardless of the identity of their shareholders. As regards the enterprise in question, the Securities and Exchange Commission has taken several measures with a view to ensuring compliance by its Board of Directors with Act No. 18046 concerning enterprises. In fact, there have been numerous infractions which had led the Securities and Exchange Commission to adopt such measures as the review of financial statements submitted to the shareholders; the suspension of improperly convened shareholder meetings; the sanctioning of the Board of Directors for its persistent reluctance to comply with the law and with the instructions of the Commission. The Government's communication indicates that the Securities and Exchange Commission "has not authorised the enterprise's liquidation" since it is not competent to "authorise" the liquidation of an enterprise, although it may prevent a liquidation carried out without compliance with the legal requirements. In the case of SOCORE, its dissolution has not been approved by the genuine representatives of the shareholders, since the enterprise's Board of Directors has refused to recognise the Directorate of Social Security as the liquidator of the ex-Benefit Fund and the ex-Fund as lawful owner of a considerable percentage of the shares of the enterprise in question; this matter can only be clarified in a ordinary court of law.

&htab;291.&htab;Concerning the judicial claims mentioned by the complainant, the Government's communication adds that all court decisions have gone against the SOCORE Board of Directors, and that none have challenged the Securities and Exchange Commission, which has only sought to ensure compliance with the law by the directors of this enterprise, without ever calling into question their presumed status as trade union leaders. As regards the role of the Directorate of Social Security in the dissolution of the Trade Union Benefit Fund for Leather and Shoe Workers, the Government's communication adds that this "Fund" was established in 1955 pursuant to an arbitrator's award and was financed by the employers' monthly withholding of 20 per cent of the remuneration of all workers in this sector; it was designed to indemnify workers upon termination, and was not subject to any type of control. Transitory section 7 of Legislative Decree No. 2758 of 6 July l979 required all external funds to obtain legal status within a term of six months, failing which they would be dissolved. Section 1, clause 38 of Legislative Decree No. 2950 of 21 November 1979 replaced the earlier text and granted a further period of six months for compliance with its requirements, and again called for the extinction and liquidation of funds failing to comply. Section 15 of Act No. 18018, published on 14 August l981, set out to clarify the earlier instruments and provided that external funds which had not obtained legal status by 21 May 1980 were to be considered dissolved, regardless of the stage of proceedings concerning their application for legal status. Section 16 of Act No. 18018 ordered that funds thus dissolved were to be liquidated by the Directorate of Social Security, and that the proceeds of the liquidation should be credited to the workers who were benefiting from, or on whose behalf contributions were made to the fund in question. Lastly, section 18 of the same Act provided that employers who had been required to contribute to such external funds should discontinue their contributions and increase in a corresponding amount the remuneration of workers on whose behalf the contributions had been made; moreover, it empowered the above-mentioned Directorate to resolve all questions arising in connection with the application of the Act and the liquidation of the funds concerned. The Trade Union Benefit Fund for Leather and Shoe Workers failed to obtain legal status within the required term, and thus qualified for extinction and liquidation. However, in spite of the time elapsed, it has not been possible to secure any of its assets for liquidation because the ex-directors of the Fund decided to use its assets to purchase the SOCORE enterprise using all of the Fund's resources for this purpose, and becoming the majority shareholder in SOCORE with 70 per cent of the shares. The directors of the enterprise are the same persons who served as directors of the ex-Fund; they received monthly directors' fees until all available funds were exhausted and spent the proceeds from the sale of most of the ex-Fund's real property without any benefit to any of the workers, under the pretext that neither the law, nor the Securities and Exchange Commission, nor the Directorate of Social Security could liquidate the Fund, arguing that such liquidation could be carried out only by the workers, through their Board of Directors. For this reason, the enterprise has been forced to suspend payments. The financial direction of SOCORE has been assumed by the Securities and Exchange Commission which, in keeping with its legal authority, has been compelled to impose personal fines on its directors - in order to avoid prejudicing the enterprise and the workers - for their failure to abide by its resolutions inasmuch as they transferred shares which belong to the Fund in liquidation, as the enterprise's major shareholder, represented by the Directorate of Social Security, which has not been able to influence its administration directly or indirectly. All the fines have been appealed to the Supreme Court, and have been confirmed by the courts, which have denied all actions for relief filed by the directors. The Directorate of Social Security, for its part, has filed suit against the directors and SOCORE in an effort to secure the total transfer of shares in accordance with the law, in order to carry out the liquidation of the Fund's assets and to turn over the proceeds to the workers who contributed to the Fund, and to prevent a group within the Fund from deriving the exclusive benefit of such assets. The preventive measures decreed by the courts, which prohibit the signing of instruments or contracts concerning the three remaining properties, have prevented the sale of these assets and the complete disappearance of the proceeds of leather and shoe workers' contributions to the Fund.

&htab;292.&htab;Lastly, concerning the allegations that the Directorate of Social Security, as representative and liquidator of the Fund, has failed to collect from leather and shoe employers the sum of 55 million pesos which is allegedly owed to the Fund, the Government's communication states that this alleged debt is not formally recognised and has always been challenged by these employers. In accordance with its legal authority and by means of resolution No. 004 of 25 November 1985, the Directorate of Social Security concluded that the employers were only required to contribute to the Fund until 21 May 1980, the date of the Fund's legal extinction. As the alleged debt would have accrued since that date, it is clearly without grounds. Likewise, it was resolved that all who at one time were required to contribute to the Fund, were required to increase the remuneration of workers as from 14 August 1981, under the supervision of the Labour Directorate. The resolution was duly communicated to all officials of trade unions involved with funds in liquidation; there were no administrative or judicial claims or objections. As regards the case at hand, the former ex-officials of the Fund and the directors of SOCORE were notified towards the end of November 1985.

&htab;293.&htab;The allegations which remained outstanding following the Committee's last examination of this case in May 1987, concerned the visits of unidentified persons to the homes of several leaders of the Catering Confederation and the El Surco Peasants' Confederation; the reasons for the indictment against Beatriz Brikmann Scheihing; the dismissal of teachers, among them of a number of trade unionists, pursuant to Official Letter No. 1766 of 28 March 1986 of the Ministry of the Interior; the illegal search carried out on the premises of the Confederation of Textile and Clothing Workers (CONTEVECH), as well as that of the homes of several national trade union officials. Since then new allegations have been made concerning the dismissal of teachers and officials of the AGECH and of the Teachers' College of Chile pursuant to Official Letter No. 1766 of 28 March 1986 of the Ministry of the Interior; threats against the lives of several officials of the AGECH, of the Teachers' College, of the Teachers' Trade Union of Viña del Mar and of the Trade Union of Workers in Commerce; the violent break-up by police forces of a nation-wide protest called on 26 March 1987 by the National Grouping of Workers (CNT), which resulted in the injury and arrest of several leaders of that organisation; the arrest of three officials of the Teachers' College and nine teachers at a peaceful demonstration of 26 February 1987 held in front of the Ministry of Education; the liquidation by administrative authorities of a Trade Union Benefit Fund for Workers in the leather and shoe industry and the efforts to liquidate a construction and leasing company (SOCORE). Other allegations concern a number of violations of trade union rights: the death of a trade unionist, the arrest and ill-treatment of several trade union leaders, the imprisonment of several miners for having participated in protest days, the attempted homicide of trade unionists and the refusal to allow a number of trade union leaders to enter the country; the refusal by an employer to recognise and to enter into a collective agreement with the workers' representatives; the incompatibility which legislation establishes between the holding of trade union office and affiliation with political parties, and the requirement that trade union leaders sign an affidavit upon their election concerning any political affiliation; the ineligibility of a trade union official of the National Peasants' Confederation to hold the presidency of that organisation on the grounds that he has been charged with participating in protest days; the arrest and harassment by security forces of dozens of workers and trade unionists following the authority's refusal to allow a national day of protest convened by the CNT for 7 October 1987; and lastly repeated threats against the lives of trade union leaders of the CNT, and in particular, against its President, Manuel Bustos, and the court summons, filed at the instigation of the Ministry of the Interior, of CNT leaders Manuel Bustos, Arturo Martínez and Moisés Labrana, and their subsequent imprisonment in the Santiago Penitentiary after questioning by a Judge of the Supreme Court, on 20 October 1987.

&htab;294.&htab;As regards the allegations of several Chilean confederations concerning the visits by unidentified persons at the homes of Manuel Caro Castro and Enrique Avendaño Atenas, leaders of the Catering Confederation and the El Sucro Peasants' Confederation, respectively, the Committee notes that the authorities investigated these charges and ascertained that no complaints were lodged in this connection; they further report, that no warrants have been issued for the arrest of these trade unionists, and that there is no information concerning the alleged search of the headquarters of these organisations. In view of the fact that many allegations of this kind have been received since the opening of this case, the Committee wishes to recall that trade union rights may only be exercised in a climate free of violence, pressure and threats of any kind against trade unionists. It again requests the Government to undertake as soon as possible judicial investigations with a view to determining who is responsible for these alleged actions.

&htab;295.&htab;As regards the grounds for the charges against Beatriz Brikmann Scheihing, the Committee notes that she has been accused of a crime under section 8 of Act No. 17798 concerning arms control. The Committee understands that the judicial proceedings against Mrs. Brikmann are still in progress and requests the Government to keep it informed of developments in the case and its outcome.

&htab;296.&htab;As regards the search of the headquarters of the Confederation of Textile and Clothing Workers (CONTEVECH), the Committee notes that proceedings for illegal search are at the indictment stage, and therefore secret; it requests the Government to keep it informed of the outcome of these proceedings.

&htab;297.&htab;As regards the arrest of three leaders of the Teachers' College, namely Messrs. Osvaldo Verdugo, Luis Cisternas and Pedro Soto, and of nine other teachers on 26 February 1987, during a demonstration organised in front of the Ministry of Education to protest the dismissal of teachers, the Committee notes that the three trade union leaders were released after having been fined 780 pesos each for disturbing the peace, pending summons by the Third Police Court of Santiago, and that the nine teachers were released unconditionally on that same day. The Committee recalls that the right to organise public demonstrations is an important aspect of trade union rights.

&htab;298.&htab;As regards the allegations made by several national and international trade union organisations concerning the dismissal of teachers pursuant to Official Letter No. 1766 of 28 March 1986 of the Ministry of the Interior, the Committee notes that, according to the Government, these measures concern a general restructuring of the educational system, which aims at reducing a surplus of teachers which dates back to the 1960s, and to ensure that all teachers are duly accredited. The Committee wishes to point out that these measures fall beyond the scope of freedom of association; nevertheless, it notes with concern the high number of national and local leaders of teachers' trade unions who have been dismissed following the promulgation of this Official Letter. The Committee also notes that the complainants allege that duly accredited and experienced teachers have also been dismissed. In these circumstances, although aware that the Government has instituted a number of flexible measures to facilitate the reintegration of teachers, the Committee wishes to recall the principle contained in Recommendation No. 143 concerning the protection and facilities to be afforded to workers' representatives in the undertaking, which advocates specific measures of protection, including the "recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce".

&htab;299.&htab;As regards the communication of the National Confederation of Trade Unions of Leather and Shoe Workers, (ex FONACC), which alleges that the assets of workers in this sector, including the SOCORE S.A. enterprise, may be confiscated by the administrative authorities, thus extinguishing the trade union and the debt of 55 million pesos owed by employers for contributions dating back to 14 August 1981, the Committee notes the Government's explanations concerning the reasons why it ordered the liquidation of this Trade Union Benefit Fund. The Committee understands that the complainants have not legally objected to the Fund's liquidation, and that the complaint is based primarily on the question of the ownership of the assets of the SOCORE enterprise and on its current legal status; in other words, whether its assets belong to the Trade Union Benefit Fund, in liquidation, represented by the Directorate of Social Security, or whether the Fund is an independent body. The Committee also notes that the Government maintains that the dissolution of SOCORE has not been approved by the true representatives of the shareholders, that this matter can only be settled by the ordinary courts of law, and that all judicial appeals referred to by the complainant have gone against the Board of Directors of SOCORE S.A. The Committee notes that the Securities and Exchange Commission has only investigated whether the directors of this enterprise have complied with the law, without seeking at any time to call into question their status as trade union officials. As regards the alleged debt representing employer contributions which would have accrued since the Fund was ordered to liquidate, the Committee notes that this debt is not recognised and that this is not an issue calling for a decision on its part. The Committee wishes to point out that it is not convinced by the allegations presented that the exercise of the trade union rights of the National Confederation of Trade Unions of Leather and Shoe Workers, ex FONACC, has been restricted, or that there has been any interference by the administrative authorities in the management and activities of the trade union. Therefore, the Committee considers that the legal aspects concerning the administration and status of the SOCORE enterprise are not trade union matters.

&htab;300.&htab;Lastly, the Committee notes that the Government has not furnished observations concerning a number of allegations presented in this case, namely: threats made on 6 Februry 1987 against the lives of trade union leaders of the AGECH, of the Teachers' College in the Fifth District, of the Teachers' Trade Union of Viña del Mar and of the Trade Union of Workers in Commerce; the intervention of police forces on 25 March 1987 in a nation-wide mobilisation of workers convened by the National Grouping of Workers (CNT), which led to the injury and arrest of leaders of that organisation; the problems encountered by the workers of the Baby Colloky enterprise in signing a collective agreement, and the refusal of the enterprise to recognise the workers' representatives; the complaints submitted by the National Confederation of Trade Unions, Federations and Associations of Workers in the Private Sector concerning legal provisions which make the holding of trade union office incompatible with affiliation with a political party, as well as the requirement that trade union officials, upon their election, sign an affidavit concerning any political affiliation; the ineligibility of the President of the National Peasants' Confederation to occupy the office to which he was elected by the Congress of that organisation, because he had been arrested and charged under the National Security Act for having participated in an industrial action as a trade union leader; the arrest and aggression by security forces of dozens of workers and trade unionists following the authorities' refusal to allow a national protest day convened by the CNT for 7 October 1987, and repeated threats against the lives of CNT leaders, in particular its President, Manuel Bustos, as well as the judicial summons, at the instigation of the Ministry of the Interior, of Manuel Bustos, Arturo Martínez and Moisés Labrana, trade union leaders of the CNT and their subsequent imprisonment in the Santiago Penitentiary after questioning by a Judge of the Supreme Court, on 20 October 1987.

&htab;301.&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 complaints filed since its most recent examination of this case, which reflect the serious difficulties faced by the trade union movement and its leaders.

(b) As regards the allegations of several Chilean confederations concerning the visits by unidentified persons to the homes of leaders of the Catering Confederation and the El Surco Peasants' Confederation, and in light of the many allegations of this nature submitted since this case was opened, the Committee urges the Government to undertake judicial investigations with a view to identifying the parties responsible for such alleged actions against trade unionists, and to ensure the normal development of trade union activities in a climate free of intimidation and fear.

(c) As regards the proceedings against Beatriz Brikmann Scheihing for breach of Act No. 17798 on arms control, the Committee requests the Government to keep it informed of developments in these proceedings and the outcome of the case.

(d) As regards the searches carried out at the headquarters of the Confederation of Textile and Clothing Workers (CONTEVECH), the Committee requests the Government to keep it informed of the outcome of the judicial proceedings in progress concerning the illegal search of these trade union premises.

(e) As regards the arrest of three leaders of the Teachers' College and of nine teachers who participated in a demonstration in front of the Ministry of Education on 26 February 1987, the Committee recalls that the right to organise public demonstrations is an important aspect of trade union rights, and that public authorities should refrain from any form of intervention which undermines the right of trade unions to organise and hold public demonstrations in defence of their rights and claims.

(f) As regards the dismissal of teachers pursuant to Official Letter No. 1766 of the Ministry of the Interior, including the dismissal of a number of national and local trade union leaders, the Committee wishes to point out, in particular, the danger that the dismissal of trade union leaders, in this particular case within the context of an administrative reform of the educational system, and the consequent loss of trade union office, may restrict the freedom of action of the trade unions to which they belong and their right to elect their representatives freely. The Committee urges the Government to consider the possibility, within the measures of flexibility instituted for the reintegration of teachers, of giving special attention to the case of teachers' trade union officials who had been dismissed throughout the country. (g) As regards the communication of the National Confederation of Trade Unions of Leather and Shoe Workers (ex FONACC), the Committee wishes to point out that the legal aspects of the administration and status of the SOCORE enterprise are not trade union matters; it therefore considers that this question falls beyond its competence and that this aspect of the case does not call for further examination.

(h) Lastly, the Committee urges the Government to send its observations on the allegations to which no replies have yet been received.

&htab;302.&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. Despite numerous requests to the Government for its observations on the various allegations, no reply was received and the Committee was obliged on two occasions to examine this case without the benefit of the Government's reply [see 244th Report, paras. 337 to 356, and 251st Report, paras. 373 to 398, approved by the Governing Body at its 233rd and 236th Sessions, May 1986 and May 1987 respectively].

&htab;303.&htab;The Government supplied certain information in a communication dated 25 May 1987. The WCOTP sent additional information in a letter dated 30 July 1987.

&htab;304.&htab;At its 236th Session, the Governing Body, on the Committee's recommendation, authorised the Chairman of the Committee to contact the representatives of the Government attending the International Labour Conference in order to discuss appropriate ways through which the Committee might pursue its examination of the case [251st Report, para. 12]. Such a meeting accordingly took place on 11 June 1987, at which the Government representatives assured the Chairman of the Committee that detailed information would be submitted in writing before the November session of the Governing Body.

&htab;305.&htab;Subsequently, in response to a request for intervention made by the WCOTP on 30 June 1987, the Director-General of the ILO cabled the Nepalese authorities on 7 July 1987 urging them to transmit their observations on the serious allegations of arrests and police interference in the teachers' organisation's conference. The Director-General offered to send a representative to Nepal to discuss the general situation and to assist in finding solutions in light of the internationally recognised ILO principles and standards on trade union rights.

&htab;306.&htab;No further information has been forthcoming from the Government on this case.

&htab;307.&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;308.&htab;In its previous examinations of this case, the Committee noted that the WCOTP alleged the following: (1) refusal, since early 1980, 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, whereas two new government-controlled teachers' unions have been set up after talks; (3) repressive actions by the authorities, including death of six district officers of the NNTA, detention for over two years of eight NNTA leaders, interference in the NNTA second national conference by the police and mass arrests of demonstrating teachers. The complainant supplied a list of 61 named teachers allegedly dismissed because of their trade union activities and a list of 35 named teachers allegedly transferred for such activities.

&htab;309.&htab;At its session in May 1987, the Governing Body, on the Committee's recommendation, approved the following:

(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;310.&htab;In its communication of 25 May 1987, the Government states that the complaint lodged by the Nepal National Teachers' Association is baseless and malicious and that the allegations were intended to malign the Government.

&htab;311.&htab;The Government explains that the importance of youth in the building of the nation need not be emphasised and the responsibility of inculcating discipline and providing knowledge to the young lies mainly with the teachers. Recognising this tremendous responsibility of teachers, states the Government, it has been trying to raise the morale and spirit of teachers in Nepal. For example, it has recently constituted an ad hoc committee to draft a constitution to form a teachers' association for the promotion of teaching and academic work, career development and protection of the rights and interests of teachers remaining within the parameters of the constitution and existing laws of the land. This committee is chaired by a member of Parliament and includes a wide range of representatives from both the primary- and secondary-level teachers of the country.

&htab;312.&htab;According to the Government, the ad hoc committee has drafted the constitutions of the Nepal National Primary Teachers' Association and the Nepal National Secondary Teachers' Association, both of which have received the Government's assent. Central-level ad hoc committees have been constituted to set up the primary- and secondary-level teachers' associations as envisaged in the newly drafted constitutions. Therefore, concludes the Government, the problems of the teachers have been solved.

&htab;313.&htab;Lastly, the Government states that no teacher has been imprisoned on the ground of his or her educational and academic pursuits.

&htab;314.&htab;In its letter of 30 July 1987, the WCOTP alleges that the police hindered the activities of its Asian Regional Representative while he was in Kathmandu and prevented the holding of its affiliate's third national conference, scheduled for 25 to 27 June 1987 and at which 185 NNTA delegates were expected. In addition, the WCOTP cites a newspaper report of the Minister of Education's statement in Parliament to the effect that any organisation other than the newly formed Nepal Primary Teachers' Association and the Nepal Secondary Teachers' Association would be illegal under section 6 of Act No. 2018, which prohibits the creation of associations parallel to already registered ones; this same report quotes the Minister as threatening "strong action" against those planning a conference on 25 to 27 June and indulging in activities banned by law.

&htab;315.&htab;According to the complainant, it sent its Regional Representative to Kathmandu to attend the NNTA's third national conference and from the moment of his arrival he suffered police surveillance, including the tapping of his hotel telephone. On 24 June, the police prevented him from visiting the NNTA's office. Officials of the UNDP advised him that the authorities would not be responsible for his safety if he remained in the country. Two NNTA representatives who went to the Regional Representative's hotel were arrested upon their arrival. On 27 June, the co-ordinator and three other principal officers of the "Central Ad Hoc Committee" - established by the Government to set up the two government-controlled associations - attempted to visit the Regional Representative but were prevented by the police. They appealed by telephone from the hotel to a number of ministers and government officials but were unable to obtain authority to speak to the WCOTP representative.

&htab;316.&htab;The WCOTP states that it is clear that the ban on contact with international organisations - a flagrant violation of freedom of association - extends even to the artificial associations created by the Government.

&htab;317.&htab;According to the complainant, the first arrests of teachers in connection with the national conference began as delegates from outlying areas were preparing to leave their homes a week before the conference. Teachers were seized, confined to cells where there was no room to lie down and refused food. On 25 June 1987, in the vicinity of the NNTA office, there were indiscriminate arrests of teachers, students, parents and passers-by. The WCOTP supplies a list of 72 arrested teachers (see annex).

&htab;318.&htab;That evening, states the WCOTP, an attempt by the police to enter the NNTA office was frustrated by a gathering of local people. During that day, the premises on which the conference was to be held were surrounded by police and all access prohibited. The conference, however, did take place on 27 June at an undisclosed location and was, according to the WCOTP, peaceful and attended by members of Parliament, representatives of parents, students, professional associations and the press. It carried out its statutory duties, including election of a national executive committee.

&htab;319.&htab;The Committee would first express its profound regret that, in spite of the seriousness of the allegations made in this case and the various requests - including contacts and interventions by the Chairman of the Committee and the Director-General of the ILO - made to the Government to transmit its observations thereon, the Government has supplied only one written communication in the form of a general denial that trade union rights have been infringed. In these circumstances, and before examining the substance of the case, the Committee considers it necessary to emphasise once again the considerations it set out in its First Report [paragraph 31], namely that the purpose of the procedure for the examination of allegations of violation of freedom of association is to promote respect for trade union rights in law and in fact, and that if the procedure protects governments against unreasonable accusations, governments should in turn recognise the importance of formulating, for objective examination, detailed factual replies to all the allegations brought against them.

&htab;320.&htab;The Committee observes that, despite the Government's statement in its communication of 25 May 1987 that "the problems of the teachers have been solved", the complainant organisation's previous and most recent communications allege that members of the Nepal National Teachers' Association are in an extremely dangerous situation, faced with government intervention, arrests, dismissals and confiscation of union property.

&htab;321.&htab;On the first specific issue which remains outstanding since the original letter of complaint presented in 1985, and on which the Government has never commented, the Committee notes that the NNTA remains unregistered and therefore unrecognised for collective bargaining purposes. It also notes that the Government's letter of 25 May 1987 refers exclusively to the two recently-constituted teachers' associations set up by the Government for, inter alia, "career development and protection of the rights and interests of teachers". The Committee can only deplore - as it did in its previous examinations of this case - this situation in which one of the basic principles of freedom of association - that all workers should be free to form and join organisations of their own choosing without government interference for the promotion and defence of their occupational interests - has not been respected.

&htab;322.&htab;The Committee notes, moreover, that the Government recognises that the ad hoc committee created to draft the basic documents of the two new associations was chaired by a member of Parliament and submitted its work to the Government for consent. Such a procedure is not in conformity with the principle of freedom of association which guarantees workers' organisations the right to draw up themselves their constitutions and rules. The Government's statement that the ad hoc committee included a wide range of teachers' representatives is not supported by any documentation and does not concord with the earlier allegations of mass arrests of teachers and the continuing detention without trial, apparently on the grounds of union affiliation and activities, of eight NNTA officers.

&htab;323.&htab;Secondly, as regards the earlier allegations of deaths, arrests and detention without trial of unionised teachers, the Committee notes that the Government denies that any teacher has been imprisoned on the grounds of his or her educational or academic pursuits and that it makes no reference to arrests for trade union reasons apart from a general statement that the complaint is baseless. The Committee is, therefore, obliged to refer to the conclusions it reached in its previous examinations of this case. In particular, it would again express the hope that a judicial inquiry will be set up to investigate the alleged deaths. It again requests the Government to inform it of the charges brought against Messrs. Yagya Murti Arjal, R.P. Panday, A.P. Sapkota, K.P. Bhattari, Ramashis Yadar, Chandeswar P. Shingh, Ram B. Thapa and Madhar.

&htab;324.&htab;In this connection, the Committee notes that the complainant's most recent communication lists the names of a further 72 teachers allegedly arrested during police disturbance of the NNTA's third national conference which appears to have been held at an undisclosed location in Kathmandu on 27 June 1987. As the Government has not supplied its observations on these new allegations, including that of government interference in contacts between the national teachers' union and a representative of the international occupational organisation to which it is affiliated, the Committee requests it to do so as rapidly and in as detailed a manner as possible.

&htab;325.&htab;The Committee would also recall that, apart from the Government's general rejection of the complaint as baseless and malicious, it has supplied no information on the alleged police raid on the NNTA premises on 17 May 1985 and the confiscation of union papers. It, therefore, also requests the Government, as in its previous examinations of this case, to supply its specific comments thereon.

&htab;326.&htab;Given the seriousness of the numerous allegations in this case, the Committee urges the Government to re-examine the Director-General's offer of 7 July 1987 to send a representative to Nepal to assist in finding solutions in accordance with relevant ILO standards and principles on freedom of association.

&htab;327.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee regrets that the Government has refused to register the Nepal National Teachers' Association and has intervened on its own authority to form two new organisations. The Committee would once again stress the importance of the principle of freedom of association that workers - including teachers - should have the right to form and join organisations of their own choosing.

(b) The Committee expresses its profound regret that the Government has supplied only a general denial of the allegations in this case in spite of many requests for its specific observations and that the Committee has therefore been obliged to examine the case in the absence of specific and detailed information.

(c) The Committee requests the Government to set up a judicial inquiry to investigate the alleged deaths of teacher trade unionists at the hands of the police and to inform it of the charges brought against the eight named trade unionists' leaders of the Nepal National Teachers' Association.

(d) The Committee requests the Government to supply, as rapidly and in as detailed a manner as possible, its observations on the complainant's most recent communication alleging police disturbance of the NNTA's third national conference, including the arrest of 72 named teachers and interference in the national union's international contacts.

(e) The Committee again requests the Government to supply its specific comments on the alleged police raid on the NNTA premises in May 1985 and the confiscation of union papers.

(f) The Committee urges the Government to re-examine the Director-General's offer to send a representative to Nepal in order find solutions to the problems raised in this case in the light of ILO principles on freedom of association, and to ensure a situation that is in conformity with its obligations as a Member of the International Labour Organisation.

&htab;343.&htab;In a communication dated 25 March 1987, the ICFTU submitted a complaint of infringement of trade union rights in Ecuador.

&htab;344.&htab;The Government sent its observations in a communication dated 15 July 1987.

&htab;345.&htab;Ecuador 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;346.&htab;In its communication dated 25 March 1987, the ICFTU explains that its affiliate organisation in Ecuador, the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL), together with other national trade union confederations, called a national strike on 25 March 1987 to protest against the excessive increase in fuel prices and transport costs. According to the ICFTU, the Government, on the grounds of this national strike, ordered the arrest of the Secretary-General of the CEOSL, Julio Chang and other trade unionists.

&htab;347.&htab;In its communication of 15 July 1987, the Government points out that on 5 and 6 March 1987, there were three serious earthquakes which affected a large part of the country, resulting in loss of life and property and bringing oil production (the country's major trade export) to a halt, as a large stretch of the trans-Ecuadorian pipeline was destroyed; this caused a sudden situation in which the national economy threatened to collapse. The Government, the communication continues, coped with the emergency situation as best it could to ensure that the country could continue functioning in spite of the immediate consequences of the disaster.

&htab;348.&htab;The Government adds that, in view of the disasterous situation which had occurred and which threatened to paralyse the national economy, it was bound, in fulfilling its obligations to govern, to take some measures to create emergency resources (so to be able to pay the salaries of public servants, amongst other things) and improve the capacity of the remaining system of production. As part of these measures, it was necessary to raise the price of petrol to the equivalent of 46 American cents or 75 Swiss centimes per gallon (4 litres), i.e. 11 American cents or 18 Swiss centimes per litre. Furthermore, it was vital to release foreign currency and float the bank interest rate, because the State was incapable of continuing to subsidise exchange rates and the fixed interest rate.

&htab;349.&htab;The Government's communication adds that confronted with this situation, the "executive" of the trade union confederations did not adopt a responsible attitude. Mr. Fausto Dután, substitute member of the National Congress, representing the Broad Left Front (FADI), took over the presidency of the Workers' Unitarian Front (FUT) and announced the list of claims of the forthcoming strike which advocated: (i) there should be no payment of the foreign debt; (ii) the oil industry should be nationalised; (iii) primary commodities should only be marketed by ENAC and ENPROVIT (state marketing enterprises) in order to maintain a price balance; (iv) land should be handed over to the peasants. Furthermore, it demanded that the Head of State should be put on trial and resign and that the decision to increase fuel prices should be revoked.

&htab;350.&htab;The Government points out that this case has nothing to do with a "strike", because in Ecuadorian labour law a strike means "a collective suspension of work by employees acting in combination"; a strike is authorised "if a dispute arises between an employer and his employees", and this is submitted to the conciliation and arbitration tribunal. It may only be declared in the following cases: "(1) if the employer, after being notified of the employees' demands, fails to reply within the statutory time or gives a negative reply; (2) if the employer, after being notified, dismisses or gives notice of dismissal to one or more employees, or gives notice of the termination of an agreement ...", except "in the case of the dismissal of an employee who has committed an act of violence against the property of the undertaking or factory or against the person of the employer or his agent; (3) if no conciliation and arbitration tribunal is appointed within the time specified in section 466 or if, having been appointed, the tribunal for any reason does not meet within three days of its appointment, on condition in either case that the failure is not the fault of the members designated by the employees; (4) if conciliation proves impossible or no award is issued within the time allowed by section 473". Strikes are only guaranteed by the Constitution and the Labour Code subject to these conditions. However, this concept of strike action is so wide that it authorises strikers to remain in the factories, workshops or workplaces concerned (unique in world labour legislation), under police protection against the entry of agitators and strike breakers; it entitles strikers to receive remuneration and authorises solidarity strikes: "The law also recognises the right to strike where the object is to support a lawful strike declared by the employees of another undertaking." A lawful general strike might arise because employees in one undertaking support a strike in another undertaking, which is being conducted in accordance with the law, and this spreads to all undertakings throughout the country.

&htab;351.&htab;But this is not the case here, the Government continues in its communication, because on 25 March 1987 political leaders of various opposition parties illegally interpreted "freedom of association" in their own way. These same political leaders head trade union confederations grouped together in the Workers' Unitarian Front, whilst also participating in the Ecuadorian Revolutionary Youth Movement, the Workers' Revolutionary Movement, the General Union of Workers or the Popular Front. Similarly, they collaborate with these real or fictitious organisations, with the FEUE and the UNE and various clandestine groups who are openly committed to violence. These persons, in interpreting freedom of association in their own way, prevented the free movement of vehicles and pedestrians and normal activities within the city by raising obstacles and barricades in the streets, destroying traffic signs, public clocks and rubbish bins and tearing up the paving on the streets.

&htab;352.&htab;The Government's communication also describes the outcome of the above-mentioned strike; in particular, it notes that: citizens and members of the police and their vehicles were stoned; tyres were burnt, in Esmeralda, stores and private houses were stormed and several establishments burnt; in Quito, as a result of the storming of the Hotel Colón Internacional and the Finance Corporation with incendiary bombs, there was a threat of fire in the first floors of the hotel and the windows of both buildings were shattered; the premises of the Employers' and Workers' Association of the Ministry of Labour and Human Resources were attacked with incendiary bombs; and in Quito, an incendiary bomb was thrown at a van transporting a group of young conscripts doing their national military service, some of whom suffered injuries and burns. In the capital city, the strikers killed hundreds of dogs, scorching them in the fire and then hanging them from the branches of trees and on lamp-posts. At the end of the day of 25 March, the strikers declared that the "tenth general strike" organised by the FUT had been "victorious". Several FUT officials tried, later, to deny their responsibility for the shameful actions of 25 March and put the blame on "maladjusted elements"; some even accused the Government itself. In its communication, the Government encloses various cuttings of opinions and reports in the Ecuadorian press on the incidents which occurred before and during the strike.

&htab;353.&htab;The Committee notes that the complainant's allegations concern the arrest of the Secretary-General of the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL) and other trade unionists, because they called a national strike on 25 March 1987 to protest against the increase of fuel prices and transport costs.

&htab;354.&htab;The Committee notes the Government's explanations concerning the special circumstances which gave rise to the increase in fuel prices and transport costs. The Committee notes that the Government raises the political aspect of some of the claims put forward by the trade union confederations, as well as the unlawful character of the strike. The Committee regrets that in the course of the strike, violent and disorderly incidents occurred.

&htab;355.&htab;As regards the alleged arrest of the Secretary-General of the CEOSL, Julio Chang, and other trade unionists, as a result of the national strike held on 25 March 1987, the Committee regrets that the Government in its observations failed to submit any information on whether or not the trade unionists concerned were detained, on the actual reasons for their arrest and on whether legal proceedings had been instigated against them. The Committee therefore requests the Government to send it specific information on these allegations.

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

The Committee requests the Government to provide it with specific information on the alleged arrest of Julio Chang and other trade unionists on 25 March 1987 and on the actual grounds for these arrests and to state whether any legal proceedings have been instigated against them.

&htab;357.&htab;The ICFTU presented a complaint alleging violations of the fundamental principles of freedom of association and the right to organise, in a telegram of 12 March 1987, and in communications dated 30 March and 28 July 1987. The Government of Czechoslovakia sent its observations in a letter of 28 May 1987.

&htab;358.&htab;Czechoslovakia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

&htab;359.&htab;The complaint initially concerned the dissolution by the Government of Czechoslovakia of the Jazz Section of the Musicians' Union of Czechoslovakia (MUC), and the prison sentences imposed against Messrs. Karel Srp and Vladimir Kuril, for continuing to engage in trade union activities as Chairman and Secretary of the Jazz Section, respectively. The complainant organisation's communication of 30 March 1987 states that several other members of the Steering Committee were also sentenced to terms of imprisonment for the "exercise of illegal lucrative activities". On 11 March 1987 the Prague District Court No. 2 sentenced Mr. Karel Srp, Chairman of the Jazz Section, to 16 months' detention, Mr. Vladimir Kuril, Secretary of the Jazz Section, to ten months, Mr. Josef Skalnik, Deputy Chairman, to a ten-month suspended sentence and three years' probation, and Messrs. Cestmir Hunat and Tomas Krivanek to two years' probation. The public prosecutor has appealed the Court's decision. Two other defendants in the trial, Messrs. Milos Drda and Vlastimil Drda were both excused from appearing in court on medical grounds, and are to stand trial at a later date. According to the ICFTU, these trade unionists were arrested on 2 September 1986 on the grounds of "operating an unauthorised enterprise", "engaging in illegal lucrative activities", and "distributing illegal publications". On 28 December 1986, a Prague court ordered the release of two members of the Jazz Section, Josef Skalnik and Milos Drda, and on 22 January 1987, another court ordered the release of Messrs. Vlastimil Drda, Tomas Krivanke and Cestmir Hunat.

&htab;360.&htab;The complainant states that the arrest of the seven persons mentioned above was the culmination of several years of administrative harassment of the Jazz Section, and of anti-union discrimination in employment and judicial repression against its leaders and members.

&htab;361.&htab;As regards the dissolution of the Jazz Section, the complainant traces the history of this body with a view to explaining the activities that were brought into question in court. The Jazz Section was founded on 30 October 1971 as part of the Musicians' Union of Czechoslovakia (Cesky Svaz Hudebniku), and began to offer assistance to its membership, to defend the interests of individual performers, and to publish pamphlets on jazz, contemporary music and other cultural subjects. The membership of the Jazz Section soon grew to several thousand; the Section acted as representative for jazz musicians, organised their performances, and negotiated honoraria and working conditions on their behalf; thus, it was systematically involved in all financial and organisational questions affecting jazz musicians. In 1978, the Jazz Section started to face harassment by the authorities because of the moral support it had extended to members of a musical group who had been tried for expressing views allegedly hostile to the Government. The complainant also alleges that between 1982 and 1984, the Government launched a series of attacks through the official press against the Jazz Section and its activities. In March 1983, the Government ordered the Jazz Section to disband, which it refused to do. However, following strong pressure from the Government, the MUC disbanded the Jazz Section on 15 June 1983; subsequently, leaders and members of the Jazz Section created a new section, as part of the Prague Division of the MUC. However, on 19 July 1984, the Prague Division was ordered to disband by a decree of the Ministry of Internal Affairs. Later, on 22 October, a second administrative order to this effect was issued. The Jazz Section, which would also have been dissolved as a result, replied that according to its own by-laws, it could decide on its dissolution only by way of a two-thirds majority vote of its membership. On 21 January 1985, the Ministry of Internal Affairs issued its final decision on the dissolution of the Prague Division. On 15 January 1986, the Supreme Court refused to review the legality of the administrative dissolution of the division.

&htab;362.&htab;The complainant organisation alleges that Mr. Karel Srp, Chairman of the Jazz Section, lost his employment as technical editor at the government-owned Panton Recording Company on 28 February 1984, owing to his trade union activities. It also alleges that officials of the Ministry of Internal Affairs and police officers raided the headquarters of the Jazz Section, removing files, membership lists, books and cassette tapes.

&htab;363.&htab;In October 1985, Mr. Petr Cibulka, a member of the Jazz Section and signatory of Charter 77, was sentenced to seven months' imprisonment for having "insulted the nation". According to the Jazz Section, however, Mr. Cibulka was prosecuted for his involvement in activities linked with the Jazz Section. This sentence was upheld on appeal on 15 January 1986 and Mr. Cibulka was sentenced to three years of "protective supervision".

&htab;364.&htab;After having lost his employment, Mr. Karel Srp was accused on 18 December 1985 of "social parasitism" by the Ministry of Internal Affairs, whose officials hinted that, since he was unemployed, he could be prosecuted under such a charge, as well as under the charge of "illegal lucrative activities" allegedly carried out within the Jazz Section. The complainant states that these threats were actually linked to the authorities' displeasure at Mr. Srp's presence at the Cultural Forum of the Conference on Security and Co-operation in Europe, held the previous month in Budapest as part of the Helsinki agreements. On 8 January 1986, the authorities withdrew Mr. Srp's passport, in apparent retaliation to his trip to Budapest.

&htab;365.&htab;Other members of the Jazz Section were also imprisoned: on 28 April 1986, Mr. Jaroslav Svestka was sentenced to two years' imprisonment followed by three years of protective custody for "harming the Republic's interests abroad". In this case as well, the complainant states that the sentence appears to be related to Mr. Svestka's attempts to seek international support for the Jazz Section and its members. His sentence was later reduced on appeal. Mr. Vlastimil Marek was arrested and charged with the same offence. However, he was released after two months.

&htab;366.&htab;As concerns the trial of the Jazz Section's leaders, the complainant declares that, according to information in its possession, the court refused to hear the testimony of Mr. Prusha, the Section's legal adviser (Mr. Prusha had previously been prevented by the authorities from exercising his professional duties as an attorney in four civil cases). It also states that the only matters examined by the court were the accusations concerning the Jazz Section's financial activities, and that the court did not debate the legality of the Jazz Section's dissolution. Furthermore, the complainant notes that the President of the Court, Judge Vladimir Striborik, imposed considerably lighter sentences than those requested by the State Prosecutor (a four-year sentence against Mr. Karel Srp) and said that the Jazz Section's work was "of high quality ... (and) commendable, but needs a legalised form". Hence, it appears that the Judge's sentences were based on section 118, paragraph 1 of the Penal Code, which punishes illegal economic activities, whereas the prosecution had based its calls for severe sentences on section 118, paragraph 2, which concerns the exercise of illegal economic activities "involving considerable profit". According to the complainant, the application of the lighter sentences under paragraph 1 of section 118 implies that the court chose to take into account only such economic activities as were conducted after 15 January 1986, the date on which the Supreme Court refused to review the legality of the administrative dissolution of the Jazz Section of the Prague Division, and not those undertaken since 22 October 1984, as requested by the prosecution, which corresponds to the date of the second dissolution Decree issued by the Ministry of Internal Affairs.

&htab;367.&htab;As concerns this Decree, the complainant states that it was informed that it had been issued on the basis of Act No. 126/68 entitled "Act on certain transitory measures to re-enforce the public order" and adopted in the wake of events which marked the country in 1968. This Act permits the dissolution, at the Ministry of the Interior's request, of organisations which threaten the stability of the State during a period of crisis, without a prior examination by a court of law. Act No. 126 provided the right of any organisation liable to administrative dissolution to lodge an appeal; this right was subsequently removed by Decree No. 99 (paragraph 6) of 22 August 1969, for a period ending 31 December 1969. The complainant alleges that the dissolution Decree of October 1984 should have mentioned the possibility of lodging an appeal, but that despite this omission, the Jazz Section had nevertheless appealed against the Decree to the Constitutional Court, on the grounds that the legislation invoked for the organisation's dissolution (namely, Act No. 126/68) was no longer in force, in view of its transitory nature. However, although the Constitutional Court was created in 1968, it was never formally installed and thus the appeal was not heard. Another legal petition to squash the Decree, introduced by the complainant before the Prague Municipal Court, was rejected ab initio and on appeal.

&htab;368.&htab;In its communication of 28 July 1987, the ICFTU sent additional information concerning the dismissal of Mr. Karel Srp, alleging anti-union discrimination. On 27 November 1983, Mr. Karel Srp was given notice of dismissal from his employment with the Panton Music Fund, under the pretext of an administrative reorganisation which eliminated the post of technical editor which Mr. Srp had held for 11 years and for which he had been decorated as exemplary worker. Mr. Srp challenged the legality of the notice in court; however, the Prague District Court No. 1 rejected this challenge on 7 June 1984, and its decision was upheld on appeal on 7 September 1984. Mr. Srp remained unemployed for a certain time and subsequently found work at the JRD co-operative farm in Kamenica. According to the complainant, the court's decisions were based on the above-mentioned administrative reorganisation, and on the fact that no position within the Panton enterprise was available for Mr. Srp, who had been dismissed in accordance with the law. The complainant states that on 12 February 1987 it was informed by means of copies of crucially important documents that certain state authorities, in particular the Ministry of Culture, exceeded their mandate by seeking to have Mr. Srp dismissed owing to his activities in the Jazz Section. It appears that the authorities fabricated a situation by taking certain measures to ensure that Mr. Srp's dismissal would appear to be in accordance with the spirit of the law and international conventions. On 13 March 1987, Mr. Srp requested authorisation to re-open the matter, but the Municipal Court forwarded the matter to another jurisidiction which has yet to rule. The complainant states that at present the post of technical editor which Mr. Srp had held previously has now been reinstated. The ICFTU also reports that the sentences handed down on 11 March 1987 (see paragraph 359 above) as regards the leaders of the Jazz Section were upheld on appeal on 12 May and that Mr. Vladimir Kuril was released on 2 July after having served his sentence.

&htab;369.&htab;The Czechoslovakian Government sent its observations concerning the complainant's allegations in a communication dated 28 May 1987. As the complaint is based on the assumption that the Jazz Section was an organisation as defined by Article 10 of Convention No. 87 (in other words an organisation of workers for furthering and defending the interests of workers), the Government's reply proposes to show that this was not the case.

&htab;370.&htab;The Government recalls that the Jazz Section had been set up in October 1971 as a section of the Musicians' Union, a "voluntary mutual interest organisation." Its aims and duties, as well as the nature of its activities, were subject to the "Regulations for organisations", approved by the Musicians' Trade Union Central Committee. The Government encloses a copy of this document as well as Newsletter No. 1 (dated 30 October 1971) of the Jazz Section. The Government also supplies a copy of the objectives which the Jazz Section had drawn up upon it creation, namely "to promote the development of jazz music and foster its intergration into society's cultural life".

&htab;371.&htab;According to the Government, the Jazz Section considerably overstepped its mandate over the course of the years; in addition to its activities in the area of music, it published books and other publications on such subjects as creative arts, photography and fiction and the translation of foreign writers. It also engaged in the production and sale of posters, the recording of music on cassettes which it then sold, the organisation of exhibits for a number of organisations and other promotional activities. In the area of music, in keeping with its objectives, the Jazz Section helped to establish groups of non-professional musicians and organised concerts and recitals for professional and amateur musicians.

&htab;372.&htab;Leaving aside the questions of legality, tax evasion, copyright infringement and others which marked the Jazz Section's activities, the Government indicates that in addition to fulfilling its objectives as regards the promotion of jazz music, the Jazz Section engaged in a number of commercial operations. According to the Government, the Jazz Section's activities were never concerned with the occupational interests of its members, and the Jazz Section never aspired to become a trade union organisation, or pretended to be one. Rather, its members were jazz fans, and those among them who were employed, were organised at their workplace. Most professional musicians, with the exception of self-employed artists, belonged to the Trade Union of Workers in Art, Culture and Social Organisations; this trade union is part of the workers' movement and participates in collective bargaining on behalf of its members with their employers; the fruits of this bargaining are reflected in the regulations concerning wages and conditions of work issued by state bodies. These regulations apply to professional as well as amateur musicians.

&htab;373.&htab;The Government states that none of the members of the Jazz Section considered their affiliation to the section as equivalent to membership in a trade union organisation; moreover, none of them renounced their membership in the Revolutionary Trade Union Movement owing to their membership in the Jazz Section. Thus, the Government does not consider that there is any relationship between the activities of the Jazz Section and its own obligations flowing from its ratification of Conventions Nos. 87 and 98 on freedom of association and collective bargaining.

&htab;374.&htab;The case before the Committee concerns the administrative dissolution of the Jazz Section (Prague division), the loss of employment by its Chairman which, according to the complainant, represents anti-union discrimination, and the imprisonment of its Chairman and certain leaders and members of the Section for "illegal lucrative activities", among others.

&htab;375.&htab;As regards the arrest and imprisonment of Mr. Karel Srp and other leaders and members of the Jazz Section, the Committee is not in a position to judge whether the grounds on which they were sentenced involved activities that can normally be considered to be trade union in character.

&htab;376.&htab;As regards the question of the Jazz Section's status as an occupational organisation, the Committee considers that these workers, as professional musicians, had the right, under the principles of freedom of association, to organise in workers' associations with a view to defending their interests; to the extent that they organised for this purpose, and although the trade union aspects of their activities may not have been clearly defined at the outset, the Committee considers that they had the right to form an organisation for this purpose.

&htab;377.&htab;On the basis of all the information available to the Committee, it seems that in this case the right of the workers concerned to organise and defend their occupational interests has been infringed. The Committee regrets that the organisation known as the Jazz Section was dissolved in violation of its by-laws, by the Decrees of 19 July and 22 October 1984 of the Ministry of Internal Affairs; the Committee recalls that it has always attached great importance to the generally accepted principle set out in Article 4 of Convention No. 87, according to which workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority.

&htab;378.&htab;As regards the allegations concerning the raid by the police and officials of the Ministry of Internal Affairs on the headquarters of the Jazz Section, as well as the confiscation of files and membership lists, to which the Government did not reply, the Committee recalls that the search of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority, when that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the said premises material to a prosecution for a penal offence, and on condition that the search be restricted to the purposes in respect of which the warrant was issued [see 236th Report, Case No. 1269 (El Salvador), para. 536].

&htab;379.&htab;The Committee regrets that the Government did not supply more information concerning the loss of employment by the Chairman of the Jazz Section, Mr. Karel Srp, on 27 November 1983. The Committee notes that Mr. Srp lost his employment as technical editor in the state-owned Panton undertaking following an administrative restructuring and the unavailability of another post for Mr. Srp; however, at present, the post of technical editor has been reinstated and filled. Although the dismissal took place in accordance with the law, the information available to the Committee would appear to indicate that the dismissal was based on the fact that Mr. Srp was the Chairman of the Jazz Section, all the more so since the dismissal took place at a time when the Government had issued an order for the Jazz Section's dissolution, and when the Jazz Section had been separated from the Musicians' Union of Czechoslovakia (MUC) on 15 June 1983. While noting that the judicial authorities have yet to render an opinion concerning Mr. Srp's dismissal, the Committee would point out 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, as stipulated in Article 1 of Convention No. 98, especially as regards dismissals, and that this protection is all the more important in the case of trade union officials [see 233rd Report, Case No. 1207 (Uruguay), para. 421, and 236th Report, Case No. 1113 (India), para. 130].

&htab;380.&htab;In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) In order to be in a position to reach conclusions on the grounds for the detention of Mr. Karel Srp and other leaders and members of the Jazz Section, the Committee requests the Government to send copies of the judgements handed down against them.

(b) The Committee recalls the principle concerning the non-dissolution of workers' organisations by administrative authority and requests the Government to ensure that workers may freely establish the organisations of their choice, and manage and administer them without interference. It also requests the Government to re-examine its position concerning the Jazz Section, in the light of the foregoing conclusions and the principles of freedom of association.

(c) The Committee requests the Government to supply information on the searches made of the Jazz Section's premises by the administrative authorities and the police, as well as the seizure of files and membership lists.

(d) The Committee requests the Government to supply information concerning the dismissal of Mr. Karel Srp.

&htab;381.&htab;The complaint is contained in a communication from the World Confederation of Labour dated 17 June 1987. The Government replied in a communicated dated 14 October 1987.

&htab;382.&htab;Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;383.&htab;The World Confederation of Labour (WCL) alleges that on 2 May 1987, the Venezuelan authorities arbitrarily arrested Luis Aquilino Marcano Gamboa, Fredy Marcano, Joel Rodriguez, Juan Vicente Martinez Lopez (officials of the Federation of Free Trade Unions of the State of Monagas), Francelia Teresa Barreto and Miguel Angel Salazar Trinitario (trade unionists), and searched their homes.

&htab;384.&htab;The WCL adds that 11 days after their arrest, the first three persons were released, but that all are being tried by a military court accused of "subversion", without grounds.

&htab;385.&htab;The WCL also alleges that on 3 May 1987, the headquarters of the Federation of Free Trade Unions of the State of Monagas was raided by the authorities, who confiscated the posters for the Fourth Congress, on the grounds that they were subversive, and other posters in the files concerning the former Haitian dictatorship, illustrated by a policeman striking a working-class woman, and the photocopier of the organisation.

&htab;386.&htab;The Government states that the arrest of the persons mentioned in the complaint was due to their links, fully proven, to the "Bandera Roja" group, which is a clandestine organisation publically instigating armed conflict in the country. Similarly, the deprivation of liberty of some citizens in no way exceeded the time period established by law, within which they appeared before the competent court, which decided that some of them should be released and others remain in custody. In connection with the alleged raids, the Government points out that all, without exception, were preceded by the issue of corresponding judicial warrants and that the objects confiscated at the time for the inquiries are being held at the disposal of the court hearing the case. It adds that those concerned are able to negotiate the return of these objects with the court. All the police activities described took place against the background of events which threw the country into confusion last March, a situation fully reported by the national press. The Government stresses that the arrests and seizures were carried out in accordance with the law during the circumstances and events referred to because of the links or relation of those concerned with subversive activities and not on the grounds of their trade union status because this activity, besides enjoying the blessing of the national Government, is protected and supported by the constitutional state reigning in Venezuela and strictly adhered to by all the national authorities.

&htab;387.&htab;The Committee notes that in the present complaint, the complainant organisation has alleged the arbitrary arrest of six trade unionists (three of whom were later released), the searching of their homes and their trial before a military court accused, without grounds, of subversion, and the raiding of the headquarters of the Federation of Free Trade Unions of the State of Monagas, during which several posters and the photocopier of the organisation were confiscated.

&htab;388.&htab;The Government has pointed out that the arrests, house searches and seizures in question were carried out with all the necessary legal and procedural guarantees. It states that they did not take place because of the trade union status of those concerned, but because of their links with the group "Bandera Roja" (a clandestine organisation which is publicly instigating armed conflict in the country) and in connection with their subversive activities, as part of the action undertaken by the authorities during the events which threw the country into confusion in May 1987.

&htab;389.&htab;The Committee takes note of the Government's explanations. Nevertheless, the Committee would emphasise that when complainants allege that trade union leaders or workers have been arrested for trade union activities and the governments' replies are simply to the effect that the arrests were made for subversive activities, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests in order to be able to make a proper examination of the allegation [see "Freedom of Association", Digest of Decisions and Principles of the Committee on Freedom of Association of the Governing Body, 3rd Edition, 1985, para. 115].

&htab;390.&htab;In these circumstances, the Committee requests the Government to indicate the actual events which prompted the arrest, house search and trial of each of the six trade unionists mentioned in the complaint, to provide information on the developments in the corresponding trial, and to give the exact reasons for the raid on the headquarters of the Federation of Free Trade Unions of the State of Monagas and for the confiscation of its property.

&htab;391.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations: &htab;While noting that three of the six trade unionists, who were arrested, have been released, the Committee requests the Government to indicate the actual events which prompted the arrest, house search and trial of each of the six trade unionists, to provide information on the developments in the corresponding trial, and to give the exact reasons for the raiding of the headquarters of the Federation of Free Trade Unions of the State of Monagas and the confiscation of its property.

&htab;392.&htab;The complaint is contained in a communication from the International Organisation of Employers (IOE) dated 7 August 1987. The IOE supplied additional information and new allegations in communications dated 8, 11 and 18 September and 27 October 1987. The Government replied in communications dated 12 August and 28 September 1987.

&htab;393.&htab;Panama 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;394.&htab;The International Organisation of Employers (IOE) alleges in its communication of 7 August 1987 that on Wednesday, 5 August 1987 the government authorities of Panama ordered the arrest of Eduardo Vallarino, President of the National Council of Private Enterprise (CONEP), Aurelio Barria, President of the Chamber of Commerce, Industries and Agriculture (both of whom are at present fugitives), Gilbert Mallol and César Tribaldos, former Presidents, Rafael Zúñiga, Executive Director, and Roberto Brenes and Carlos González de la Lastra, members of the same Chamber of Commerce. The IOE also alleges that the premises of the Chamber of Commerce and the Association of Managers of Enterprises affiliated to CONEP were searched and documents confiscated. According to the IOE the employers' leaders were accused of sedition and the attempted overthrow of the Government whereas in fact CONEP, on behalf of its 28 groups of affiliated employers representing almost all the business world in the country, had simply protested publicly against the suspension of constitutional guarantees, and in particular freedom of the press, the brutal repression practised by the armed forces during peaceful, popular demonstrations for the restoration of civil liberties, government incitement to class conflict, and the economic paralysis of the country and its long-term effects on employment. In particular CONEP demanded an examination by an independent and impartial commission of the accusations made against the Government and against the military leaders who supported it, the application of constitutional provisions and civil law to the armed forces and the restoration of democracy and individual freedoms in Panama. According to the documentation provided by the IOE, the searches and arrests referred to occurred after a major demonstration had been convened for 6 August 1987 by the National Civil Crusade (consisting of various groups of employers, civic leaders, teachers and professional workers).

&htab;395.&htab;The IOE encloses a "Manifesto to the country" which was adopted by the National Council of Private Enterprise on 15 July 1987 and published on 16 July in the now banned newspaper La Prensa. The text of the manifesto reads as follows:

&htab;We condemn the bestial manner in which the armed forces repressed the peaceful demonstration which Panamanian citizens attempted to hold last Friday, 10 July, to defend their principles and their rights.

&htab;We also condemn the fact that, in their attempt to use terror to break the spirit of the more than 600 persons arrested in reprisal for the 'crime' of demanding the rule of law, the armed forces savagely degraded their human dignity.

&htab;We do not accept the open incitement to a class war that has never existed in our country, especially as it is dramatically obvious that the peaceful protests were made by representatives of absolutely all the social and economic sectors of the nation.

&htab;The economic paralysis of the country, in both the private and public sector, merely foreshadows the terrible nightmare that awaits us in the immediate future. The lack of investments resulting from the chaos produced by state terrorism and the absence of a state of law is bound to cause more and more extensive unemployment which will take years to remedy.

&htab;If the accusations of government corruption, assassination and other crimes are not resolved by the most pristine legal procedures, we shall not be able to save ourselves from the vicious circle of violence which is threatening to engulf us.

&htab;The National Council of Private Enterprise, aware of the serious nature of the situation, therefore reiterates its support for the National Civil Crusade (Cruzada Civilista Nacional) and its demands for: &htab;(a) an immediate reorganisation of government institutions enabling the country to embark on a truly democratic path;

&htab;(b) an inquiry by an independent and impartial commission into the crimes recently confirmed or denounced;

&htab;(c) the immediate removal from their public office of the persons implicated in the crimes under investigation by the independent inquiry;

&htab;(d) the subjection of the defence forces to the Constitution and their answerability to the civil authorities so that they become a professional and non-political institution whose members are protected by the normal military rules and regulations;

&htab;(e) the immediate reorganisation of the legislative and judicial bodies as well as the electoral tribunal;

&htab;(f) the full restoration of the civil liberties and fundamental guarantees embodied in the national Constitution.

&htab;Done in the City of Panama on 15 July 1987.

&htab;396.&htab;In subsequent communications dated 8 and 11 September 1987, the IOE points out that five CONEP leaders are still being detained despite repeated requests for the cancellation of these warrants for arrest by the National Civil Crusade which groups together more than 100 private associations in Panama, employers' organisations for all the countries of Central America, Mexico and Venezuela and the IOE on behalf of its members in 96 countries. According to the IOE the President of the the Republic of Panama stated on at least two occasions, at a meeting he called on 7 August 1987 which was attended by five former presidents of the Chamber of Commerce, Industries and Agriculture of Panama, and in an interview granted to the Los Angeles Times a few days later, that he had personally ordered the Public Prosecutor to cancel the warrants for arrest but that on the instructions of General Noriega he had refused to obey.

&htab;397.&htab;The IOE adds that the newspapers El Extra, El Siglo, La Prensa, El Quiubo and La Gaceta Financiera, as well as broadcasts by the radio stations Continente, Mundial and Sonora, and by two television channels, have been banned.

&htab;398.&htab;As regards the search of the premises of the Chamber of Commerce and the Panamanian Association of Managers of Enterprises (APEDE), the OIE states that both searches were ordered by the Office of the Public Prosecutor of the Third Instance and were carried out on 4 August 1987. The warrant handed over to the APEDE contains the following remark concerning the purpose of the search: "search for any documents containing subject-matter which the Office of the Public Prosecutor may deem to constitute a threat to the internal security of the State". The warrant (which the complainant attaches) confirms that the search was concluded "without anything being found". However, six hours later the Public Prosecutor's Office informed the state controlled media (and the latter duly reported) that a large quantity of subversive material and detailed plans for the overthrow of the Government had been found during the searches. The IOE stresses the flagrant contradiction between the report on the search which was made in situ and the statement by the Public Prosecutor (of the Third Instance) several hours later without the representatives of the two organisations whose premises were searched having witnessed any such "discovery" of allegedly subversive documents.

&htab;399.&htab;In its communication of 18 September 1987, the IOE encloses documents on which it makes the following comments:

- Copy of a letter dated 11 September 1987 to the General-Secretary of the IOE from the Acting President of CONEP, Mr. A. Boyd (there is still a warrant out for the arrest of the President, Mr. E. Vallarino, who is in hiding). The letter explains in detail the harassment and acts of violence initiated or tolerated by the police against the leaders of the Chamber of Commerce and its undertakings during the months of June and July. The letter notes that after a series of public demonstrations and a general strike called by the National Civil Crusade,

&htab; the Panamanian Government resolved by Decree No. 56 of 10 June 1987 to declare a state of emergency and suspend individual guarantees such as the right of assembly, association, free expression and private property. Furthermore, a campaign of implacable persecution was launched against employer leaders of the Crusade which resulted in the arrest of the President of the Chamber of Commerce, Mr. Aurelio Barria, and Mr. Carlos Henríquez, Director of the said association, who were taken away by persons unknown to a military installation belonging to the defence forces. The employer leaders were ordered to undress in front of their captors and were subjected to serious moral abuse. Subsequently, following pressure by union leaders, diplomatic officials accredited in Panama and the Catholic Church, both leaders were released. On Thursday, 2 July 1987, a group of persons belonging to organised paramilitary groups, observed and protected by units of the defence forces, appeared in the shopping centre known as Danté, where various kinds of commercial establishments operate, and threw fire-bombs and used weapons, some of them automatic, to fire on the shops and on vehicles parked in front and nearby. The armed group immediately headed towards the Danté establishment, removed the boards which were protecting the windows and threw in fire-bombs which resulted in the total destruction of the establishment which until then had operated normally. All this occurred without any of the units of the defence forces stationed near the shopping centre making any move to prevent the destruction and burning of the property. These events were witnessed by hundreds of people who at that moment were protesting against the facts that had been denounced by the National Civil Crusade. This shopping centre is owned by, among other persons, Roberto Eisenmann, former President of CONEP and the Chamber of Commerce, Industries and Agriculture of Panama and President of the newspaper La Prensa, David Eisenmann, President of the Kiwanis Club of Panama, and César Tribaldos, Jr., former President of the Chamber of Commerce, Industries and Agriculture of Panama and member of the executive committee of the National Civil Crusade. Official complaints were duly lodged with the bodies responsible for judicial inquiries but to date no satisfactory reply has been given and no attempt has been made to clarify the events denounced. - Copy of a letter dated 27 August 1987 to the Secretary-General of the IOE from Mr. W. Durling, former President of the Chamber of Commerce, Industries and Agriculture of Panama and substitute Employers' member of the Governing Body of the ILO. The letter provides details on the meeting convened by the President of the Republic, Mr. E. Delvalle, mentioned in the communication from the IOE dated 8 September 1987. The letter confirms that, under orders from the army, the State Prosecutor openly refused to carry out the instructions of the President and states that, according to the latter, the documents confiscated from the headquarters of the Chamber of Commerce were not sufficient grounds for accusing it of plotting against the Government. The letter further mentions the fact, which has been denounced by witnesses, that the police made an unsuccessful attempt to introduce weapons into the headquarters of the Chamber during the search. - As regards the contradiction between the report on the search of the APEDE premises, which states that no subversive documents were found, and the accusation of the Public Prosecutor of the Third Instance which states the contrary, the IOE encloses the communication from the Prosecutor published by the newspaper La República on 5 August.

- As regards the search of the premises of the Chamber - on which no report is available - although it is true that the police took away documents, they apparently found it necessary and indeed tried - in vain - to introduce arms into the premises, as Mr. Durling points out. The documents in question were confiscated and examined without the indispensable basic guarantees to substantiate the accusations made several hours afterwards.

&htab;400.&htab;In its communication of 27 October 1987, the IOE alleges the arrest of Mr. Conte, CONEP's Public Relations Adviser, when he was disembarking from a plane coming from the United States. According to the IOE, there has been no indication of his place of detention or the reason for this arrest; the attitude of the police shows that the harassment of CONEP is continuing and that the campaign for the defence of civil rights, particularly those linked to the exercise of trade union rights, is still subject to repressive measures.

&htab;401.&htab;In its communication dated 12 August 1987, the Government states that during the afternoon of 7 August 1987 the duly authorised Public Prosecutor of the Third Instance of the First Judicial District conducted a search of the premises of the Chamber of Commerce and Industries of the Panamanian Association of Managers of Enterprises. During the search he found seditious documents, ranging from a complete plan to overthrow the national Government to printed matter explaining how to manufacture blunt weapons, make home-made fire-bombs build barricades, and leaflets to be distributed in primary and secondary schools to foment agitation. The plan to overthrow the Government took the form of a pyramid drawn on graph paper and was written in English. The ten steps to be followed in the plan, described on separate sheets, included the removal of the Commander-in-Chief and senior staff of the defence forces, as well as lieutenants and colonels, the creation of a government junta, the dissolution of the Legislative Assembly, the Supreme Court of Justice and the Electoral Tribunal, the abolition of political parties, the convening of a constituent assembly, the holding of a referendum on a new electoral law and the holding of elections within ten to 12 months. Furthermore, there were video recordings and copies of telexes addressed to foreign governments requesting the suspension of all military and economic aid to Panama. During the search documents were also found showing that permanent communications had been maintained with the United States Senate and an office of the Civil Crusade in Washington. A seal of the Public Prosecutor of the Third Instance, which had disappeared on the day in which the President of the Chamber of Commerce, Industries and Agriculture, Mr. Aurelio Barria, had been called in to make a statement, was also found. The Minister of Government and Justice said in a press conference on 6 August that "all the laws had been violated," whilst the State Prosecutor declared: "We found documents that were a major threat to the stability of the State". The Public Prosecutor of the Third Instance, Mr. Ballesteros, then ordered the arrest of several citizens directly implicated by the documents, pending investigation of the criminal responsibility of the authors and instigators of the confiscated subversive plans. Section 306 of the Penal Code provides for prison sentences of between six months and two years for persons found guilty of such charges. According to the Public Prosecutor, measures were being taken to prevent some of them from leaving the country. The Office of the State Prosecutor has also investigated the seditious acts which took place in June and July in order to determine who is responsible, and public opinion has followed with special interest in the hearings of ex-Colonel Roberto Dias Herrera who, after making accusations that almost dangerously paralysed the country, now repeatedly asserts that he had no proof of any kind to support his claims, and explains that his accusations were based on opposition newspaper articles and on conversations with well-known opposition leaders.

&htab;402.&htab;After describing in detail the organisation of the public authorities in the Constitution of Panama and the scope of individual freedoms and guarantees, the Government explains in its communication of 28 September 1987 that on 18 June 1987 the State Prosecutor instructed the Public Prosecutor of the Third Instance of the First Judicial District to investigate the supposed participation of a group of persons known as the "Civil Crusade", led by the executive of the Chamber of Commerce or certain members thereof and other groups, in a series of unlawful acts involving incitement to civil disobedience.

&htab;403.&htab;On 19 June 1987 the Public Prosecutor of the Third Instance of the First Judicial District, acting on this instruction, ordered the necessary steps to be taken to determine whether or not any such crime or crimes had been committed, who committed or took part in them and any other relevant facts pursuant to section 2071 of the Judicial Code. These steps included the decision to hear the representatives or leaders of the member bodies of the "Civil Crusade", created and headed by the executive of the Chamber of Commerce, Industries and Agriculture of Panama. In accordance with the provisions of section 2112 ff. of the Judicial Code, the Public Prosecutor of the Third Instance heard statements from Aurelio Antonio Barria Mock, Carmen Cecilia Capriles Estrada, Víctor Manuel Falcón Paz, Juan Ramón Quintero Medina, Roberto Gonzalo Brenes Pérez, Eduardo Vallarino Arjona, Gilberto Joaquín Mallol Tamayo, Raúl Ernesto Méndez Anguizola, Jaime Penedo Martínez and César Augusto Tribaldos Giraldez. The Prosecutor also compiled a certain amount of documentary evidence.

&htab;404.&htab;On 4 August 1987 the Public Prosecutor of the Third Instance of the First Judicial District, after being informed that the Chamber of Commerce, Industries and Agriculture of Panama and the Panamanian Association of Managers of Enterprises (APEDE) were issuing and distributing leaflets whose contents constituted an attack on the internal integrity of the State, ordered searches to be carried out in the above-mentioned premises in accordance with the provisions of section 2185 and related sections of the Judicial Code, with a view to establishing the unlawful acts in question, finding the equipment used in carrying out such acts and discovering who committed or participated in them.

&htab;405.&htab;On 5 August 1987 the Public Prosecutor of the Third Instance of the First Judicial District ordered the large volume of documentation collected during the search and which confirmed the carrying out of crimes against the internal integrity of the State and against the national economy, to be included in the evidence. During the search of the premises of the Chamber of Commerce the Public Prosecutor found and confiscated an enormous quantity of documentation advocating the overthrow of the national Government and leaflets containing instructions to subvert the public order and specific details regarding the organisation of violent confrontations during the public demonstrations of the "Civil Crusade"; thousands of copies of these leaflets had been reproduced on the printing equipment of these organisations.

&htab;406.&htab;The confiscated documentation also defined the political guide-lines of the "Civil Crusade" for forming a new government following the violent overthrow of the present constitutional order. Furthermore, since the evidence obtained both from his investigations, from the documents seized and from the search carried out at the time confirmed that crimes had been committed against the internal integrity of the Panamanian State and against the security of its economy, contrary to sections 301, 306 and 372 of the Penal Code, and since these unlawful acts were attributed to members of the "Civil Crusade", the executive of the Chamber of Commerce, Industries and Agriculture of Panama or certain members thereof, the Panamanian Association of Managers of Enterprises (APEDE) and other groups, the Public Prosecutor ordered the preventive detention of Aurelio Barria Mock, Raúl Ernesto Méndez Anguizola, Gilberto Joaquín Mallol Tamayo, Rafael Zúñiga, members and leaders of the Chamber of Commerce, Industries and Agriculture of Panama as well as of Roberto Gonzalo Brenes Pérez and Eduardo Vallarino Arjona, Vice-President and President respectively, of the Panamanian Association of Managers of Enterprises (APEDE).

&htab;407.&htab;On 13 August 1987 the Second Higher Court of Justice of the First Judicial District examined the appeal lodged against the decision of 7 August 1987 whereby the Ninth Circuit Court decided to grant bail to the plaintiffs while the indictment was being examined. The substance of its ruling, reads as follows:

&htab;A significant fact which emerges from the decision appealed against is that the criminal offences examined by the competent court are precisely covered by the generic offence defined as a crime against the internal integrity of the State and have extremely broad and serious implications that are evidenced by the documents confiscated during the search carried out on the afternoon of 4 August of the present year on the premises of the Chamber of Commerce, Industries and Agriculture of Panama. [...] 'The purpose of the action taken by the Public Prosecutor's Office is to establish the relation of causality between the offence in question, the persons who took part in it and their intention since, although the various reports on the large volume of documents contained in the file stated that the said documents were evidence of a plan to change the present constitutional order, it remained to be shown that it was indeed the intention of the persons concerned to take such specific action as would bring about the objectives set out by the participants in the documentary evidence brought forward in this case.' 'The fundamental grounds for the Public Prosecutor's contention that the regulation infringed is provisionally restricted to section 301 of the Penal Code is that the offences perpetrated by the persons against whom charges have been brought continue to constitute a genuine threat. In the light of the foregoing, and in so far as this contention has not been refuted, it is perfectly justifiable to refuse bail in accordance with the law that protects in all instances those government institutions which depend on the constitutional order currently in force (section 2181 of the Judicial Code). &htab;As is apparent from the entire file on the case, the 'anti-juridicial' nature of the generic crime referred to both by the Public Presecutor and by this court has been established, and the decision against which an appeal has been lodged must therefore be amended accordingly unless the investigation currently under way shows that the circumstances call for the application of section 2178 of the Judicial Code.

&htab;Operative part :

&htab;Consequently, the Second Higher Court, resolves the following:

&htab;(a) that, in view of the annulment of criminal sentence No. 100 of 7 August 1978, the Court refuses to grant bail to the above-mentioned persons for the reasons adduced above;

&htab;(b) that the persons concerned be notified of the terms of the law.

Law : section 301 Penal Code, sections 2162, 2177, 2178 Judicial Code, section 159(16) of the Judicial Code in force.

&htab;408.&htab;The IOE's complaint mentions the warrant for arrest issued on 5 August and draws attention to the violation of the premises and confiscation of documents of the Chamber of Commerce and the Association of Managers of Enterprises affiliated to CONEP. This communication employs arguments in an attempt to deny the criminal acts perpetrated by the five employers whose arrest was ordered.

&htab;409.&htab;It should be noted in this connection that, as a state body responsible for investigating offences, the Public Prosecutor's Office is called upon to undertake certain tasks set forth in the Constitution and in the laws of the country and thus, in the present case, is unquestionably empowered to carry out the criminal investigation in the case under examination. Sections 301, 306 and 372 of the Penal Code stipulate the following:

Section 301 : Any person who encourages or directs an armed uprising to overthrow the legally constituted national Government or to change by violent means the political Constitution shall be punished by imprisonment of 15 to 20 years and disqualified from exercising public office for a like period of time. Section 306 : Any person who in a public place or through the press, radio, television or any other means incites to rebellion, sedition or riot, shall be punished by imprisonment of between six months and two years and fined between 20 and 100 minimum days' wages.

Section 372 : Any person who through the press or any other means of information disseminates false, exaggerated or tendentious news or propogates rumours which jeopardise the national economy or undermine confidence in the State shall be punished by imprisonment of between six months and three years.

&htab;410.&htab;The file of the criminal investigation shows that, by means of the mass media, citizens grouped together in the movement known as the Civil Crusade took action designed to incite to rebellion, sedition and riot and to the non-payment of public services. Specifically, these acts of incitement consisted in urging citizens not to pay their water, electricity and telephone service charges and in disseminating false information liable to undermine the reputation of the state banks and to encourage the massive withdrawal of funds from the said banking institutions, all of which constitute crimes against the security of the economy as defined in Chapter 1 of Title XII of Book 2 of the Penal Code, and in particular in the provisions of section 372 quoted above.

&htab;411.&htab;Through the mass media certain members of the movement known as the Civil Crusade, incited citizens to hold public demonstrations in protest against government institutions and advocated, inter alia, the overthrow of the national Government and the organisation of violent acts in the streets, such as the construction of barricades, the burning of property and the use of firearms. Those responsible for these incitements went so far as to describe in detail how to make home-made fire-bombs and the kind of espionage techniques to employ to locate vulnerable points in the barracks of the Defence Forces and armaments in these barracks and to identify the names of the officers.

&htab;412.&htab;These acts unquestionably constitute crimes defined by the Penal Code as crimes against the internal integrity of the State in Chapter 2 of Title IX of Book 2 of the Penal Code, sections 301 and 306 of the Penal Code, quoted above.

&htab;413.&htab;Since it had been established that the mass means of communication used by the so-called "Civil Crusade" had for the most part been reproduced on the printing equipment of the Chamber of Commerce, Industries and Agriculture and the Panamanian Association of Managers of Enterprises, searches were carried out of their premises in accordance with the provisions of section 2185 of the Judicial Code, which reads as follows: Section 2185 : The investigating official may search any building, establishment or property where there is serious reason to believe that they house the presumed perpetrator of a crime, equipment or instruments used for committing illegal acts, books, papers or any other object that may substantiate the existence of a punishable offence or serve to discover the perpetrators of or participants in an offence. These searches shall normally be conducted between 6 a.m. and 10 p.m. but may be carried out at any time in places to which the public has free access in cases of flagrante delicto or where urgent reasons so dicatate. In all events, the search must be ordered by the investigating official.

&htab;414.&htab;According to the Government, during both searches lawyers representing the institutions searched were present and signed the respective reports; all the documents confiscated during the searches are included in the criminal investigation file and belong to the so-called "Civil Crusade", of which the Chamber of Commerce, Industries and Agriculture of Panama and the Panamanian Association of Managers of Enterprises are members. Not only were searches carried out in accordance with the applicable laws and regulations, but the corresponding reports were signed by representatives of the bodies located in the premises that were searched. The documents that were seized and included in the criminal investigation file fully justify the legal action taken. The statements heard by the Public Prosecutor in connection with the investigation were in accordance with applicable legal procedures and took place in the presence of lawyers representing the persons making the statements. The warrants for arrest were issued by the Public Prosecutor's Office in accordance with the relevant legal provisions and have not so far been declared illegal by the competent courts; furthermore, no appeal has been lodged to challenge the legality of the warrants. To date, some lawyers have consulted the investigation file and others have requested and received copies.

&htab;415.&htab;In accordance with the Panamanian criminal procedure, a request was made for bail on behalf of the persons for whose arrest warrants had been issued; however, the competent jurisdictional body denied these requests on the basis of section 301 of the Penal Code and sections 2162, 2167 and 2168 of the Judicial Code.

&htab;416.&htab;To conclude, states the Government, the present criminal proceedings have been carried out in accordance with all applicable constitutional and legal procedures and the persons under investigation enjoy all the rights, means and guarantees applicable to criminal proceedings. The proceedings are not the result of any complaint regarding the infringement of freedom of association of any association or person; on the contrary, they are the result of crimes against the internal integrity of the State and crimes against the national economy, as demonstrated by the evidence in the investigation file. The search and the arrest warrants were issued in accordance with the legal powers of the Public Prosecutor in the present criminal investigation, which has in no way infringed the rights and guarantees of the persons under investigation. Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stipulates clearly that "in exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land". In the present case, the employers' leaders implicated have obviously committed offences laid down in Panamanian legislation. The present criminal proceedings have nothing to do with their activity as trade union leaders. The Panamanian Government has always respected and continues to respect the activities of trade unions and employers' associations, providing them with guarantees and various kinds of support for their development.

&htab;417.&htab;Finally, the Government attaches copies of the confiscated leaflets and instructions inciting citizens to civil disobedience and acts of violence.

&htab;418.&htab;In the present case, the complainant organisation alleges the issuing of warrants of arrest against seven employers' leaders (three of whom are said to have been arrested and two who are fugitives from justice) accused of committing crimes of sedition and of attempting to overthrow the Government; the search of the premises of the Chamber of Commerce and the Panamanian Association of Managers of Enterprises and the confiscation of documents; the banning of certain newspapers, radio stations and television channels; and the encouragement or tolerance by the police of measures taken against certain employers' leaders and their undertakings during the months of June and July 1987. According to the complainant, the confiscation of documents and issuing of warrants for arrest were the outcome of a public demonstration by employers' and other organisations demanding the restoration of civil liberties, the termination of the suspension of constitutional guarantees and a campaign against the economic paralysis of the country and its consequences on employment; the deomonstrators called, inter alia, for investigations into accusations of government corruption, murders and other crimes, the application of constitutional provisions to the Defence Forces and the reorganisation of government institutions, the legislative and judicial bodies and the electoral tribunal.

&htab;419.&htab;The Government emphasises in its reply that the warrants for arrest and the searches were part of an investigation conducted by the Public Prosecutor of the Third Instance of the First Judicial District in full compliance with the legislation in force regarding the legal rights and guarantees, following the perpetration of acts defined in the Penal Code as crimes against the internal integrity of the State and against economic security. In its reply the Government states in particular that citizens grouped together in a movement known as the National Civil Crusade, of which the Chamber of Commerce, Industries and Agriculture of Panama and the Panamanian Association of Managers of Enterprises are members, were guilty of inciting to rebellion, sedition and riot and to the non-payment of public services, and that leaflets were written, reproduced and distributed on the premises of the above-mentioned employers' organisations. The Government states further that mass means of communication used by certain members of the Civil Crusade had been found on the premises and that the population had been incited to hold public demonstrations to protest against government institutions, advocating, inter alia, the overthrow of the national Government. The movement also incited citizens to carry out acts of violence in the streets, such as the erection of barricades, setting fire to property and the use of firearms. The Government points out that the legal proceedings instigated are in no way related to the activities of the persons concerned as the officials of occupational organisations and that the Public Prosecutor of the Third Instance of the First Judicial District has placed in the penal investigation file a large quantity of documents and leaflets collected during the search of the premises of the Chamber of Commerce, Industries and Agriculture of Panama (some of which the Government encloses), which according to the Government, confirm that crimes conducive to the overthrow of the Government were committed against the internal integrity of the State and against the national economy.

&htab;420.&htab;The Committee notes that, according to the Government, the employers' organisations and the employers' leaders implicated in the present case had their rights curtailed within the framework of a criminal investigation because of their links with the National Civil Crusade and their presumed criminal activities within the movement, whose members include various occupational organisations. The Committee takes note of the Government's explanations concerning the nature and objectives of the National Civil Crusade, but observes that some of these objectives comprise aspects of interest to occupational organisations, such as the restoration of civil liberties and constitutional guarantees and the fight against the paralysis of the economy. However, there is nothing to indicate that the National Civil Crusade is protected by the guarantees afforded by the Conventions respecting freedom of association. It is, nevertheless, the responsibility of the Committee to determine to what extent the measures taken by the authorities to punish the activities organised or carried out in support of the objectives of the National Civil Crusade have hampered the exercise of the rights of employers' organisations and their leaders.

&htab;421.&htab;The Committee wishes to emphasise that, although the Government has provided general information on the warrants for the arrest of the employers' leaders Barria, Vallarino (both at present in hiding), Brenes, Mallol and Zúñiga, it has not indicated the specific acts of which they are accused individually; nor has it sent information regarding the allegations with respect to the warrants for the arrest of the employers' leaders César Tribaldos and Carlos González de la Lastra. The Committee notes further that the Government has not made any specific observations on the comments of the complainant organisation concerning the search of the premises of the two employers' organisations and the confiscation of documents. Indeed, according to the IOE, the report of the search carried out on the premises of the APEDE states that nothing was found, whereas the officials of the Public Prosecutor's Office who supervised the search claimed that a large quantity of subversive material had been found. As regards the search of the Chamber of Commerce, the IOE maintains that the police attempted - in vain - to introduce arms into the premises and that no report is available on the search.

&htab;422.&htab;In these circumstances, the Committee invites the Government to send further detailed information on the specific acts which led to warrants being issued for the arrest of each of the seven employers' leaders, on the state of the proceedings initiated and on the searches conducted and documents confiscated on the premises of the APEDE and of the Chamber of Commerce (including the report on the search of the latter's premises), with specific reference to the points raised by the complainant organisation. Furthermore, noting the social unrest (particularly within employers' organisations) which led to the events of recent months and aware that the points noted above still need to be clarified, the Committee considers that social tension would be relieved if the employers' leaders under arrest, or for whom warrants have been issued, were granted on bail and if those who have left the country are allowed to return. While noting the Government's explanations concerning the refusal to grant bail to those involved, the Committee calls on it to study the possibility of doing so.

&htab;423.&htab;Finally, the Committee requests the Government to send its observations on the allegations to which it has not replied, namely those relating to the arrest of Mr. Conte, a CONEP official, the banning of certain communication media and the harassment and violence perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July (see IOE communication dated 18 September 1987).

&htab;424.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Given the prevailing social tension in the country and the points raised by the complainant organisation concerning the search of the premises of the APEDE and the Chamber of Commerce, which still need to be clarified, the Committee calls on the Government to study the possibility of taking measures with a view to granting bail - in accordance with their own request - to the employers' leaders who are under arrest or for whom warrants have been issued, and to allow those who have left the country to return.

(b) The Committee requests the Government to send further detailed information on the specific acts which led to warrants being issued for the arrest of each of the seven employers' leaders mentioned by the complainant (no reply having been received in respect of two of them - Mr. Tribaldo and Mr. González de la Lastra), and on the state of the proceedings. The Committee requests the Government to send detailed information on the searches conducted and documents confiscated on the premises of the APEDE and of the Chamber of Commerce (including the report on the search of the latter's premises) with specific reference to the points raised by the complainant organisation.

(c) The Committee requests the Government to send its observations on the allegations to which it has not replied, namely those relating to the arrest of Mr. Conte, a CONEP official, the banning of certain communication media and harassment and violence perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings in the months of June and July (see IOE communication dated 18 September 1987).