&htab;30.&htab;The Committee last examined Case No. 1190 at its meeting in November 1987 when it presented interim conclusions to the Governing Body [see 253rd Report, paras. 246 to 256, approved by the Governing Body at its 238th Session (November 1987)].

&htab;31.&htab;Following the latest examination of the case, the Government on 11 January 1988 sent additional information on the allegations that were still under consideration.

&htab;32.&htab;Peru has ratified the Freedom of Association and Protection of the Right to Organisation Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;33.&htab;When the Committee last examined the case in November 1987, allegations relating to the arrest of trade unionists as a result of the national strike of May 1983 were still pending. More specifically, the Committee had requested 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 had been charged, and the stage the proceedings, if any, had reached) and to send precise observations concerning the alleged detention of 84 trade unionists.

&htab;34.&htab;In its communication of 11 January 1988, the Government sent additional information on this case and, specifically, on the detention of 84 people as a result of the national strike of 10 May 1983 and on the state of proceedings against Jorge Rabines Bartra and Juan Calle Mendoza. The Government states that trade union leaders Jorge Rabines Bartra and Juan Calle Mendoza, among others, were summoned before the Fourth Provincial Office of the Public Prosecutor which found that a misdemeanour had indeed been committed but that the responsibility of the accused had not been established; Jorge Rabines Bartra and Juan Calle Mendoza were therefore not detained.

&htab;35.&htab;The Government added that the case had been brought before the 19th investigating court and had been passed on to the tenth magistrate's court, which stated that no ruling was called for inasmuch as those responsible for the misdemeanour had not been identified and ordered that the case be dismissed. This decision was confirmed by the Supreme Court of Justice in a ruling of 14 October 1987, whereupon the judicial proceedings were terminated and the original examining magistrate ordered the closure of the file.

&htab;36.&htab;Finally, the Government notes that with the foregoing information it has given effect to the Committee's recommendation that it supply additional details of the proceedings initiated against the trade union leaders Jorge Rabines Bartra and Juan Calle Mendoza, and specific observations concerning the alleged detention of 84 trade unionists, and that there are therefore no longer any grounds for a complaint.

&htab;37.&htab;The Committee notes the information supplied by the Government regarding the outstanding allegations in this case, and specifically concerning the alleged detention of trade union leaders Jorge Rabines Bartra and Juan Calle Mendoza and of 84 trade unionists.

&htab;38.&htab;The Committee further notes that, although the judicial authority found that a misdemeanour had indeed been committed, the responsibility of the accused has not been established and that Jorge Rabines Bartra and Juan Calle Mendoza, among others, have therefore not been detained. The Committee also understands from the information supplied, and particularly from the decision of the Supreme Court of Justice to order the original examining magistrate to close the file on the case since those responsible for the misdemeanour have not been identified, that no one is under detention.

&htab;39.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee, taking into account the information supplied by the Government, considers that this case does not call for further examination.

&htab;40.&htab;In a letter dated 12 June 1987 the World Confederation of Labour (WCL) presented a complaint of violations of trade union rights in Ecuador.

&htab;41.&htab;The Government replied to the allegations of the complainant organisation in a letter of 21 October 1987.

&htab;42.&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;43.&htab;In its complaint, the WCL explains that, at the request of its affiliate, the "Central Ecuatoriana de Organizaciones Clasistas" (CEDOC), it makes the following allegations: that on 29 May 1987 the Government issued Executive Decree No. 2947 authorising the placing of private social development agencies under trusteeship - an operation known as intervenciones ; and that, in virtue of the said Decree, on 1 June 1987, the Ministry of Social Welfare and Advancement instituted a trusteeship over the Ecuadorian Institute for Social Training (INEFOS), a private body attached to CEDOC, which had been engaged in the training of trade union officers for over 20 years.

&htab;44.&htab;The WCL adds in the same letter that the Minister of Social Welfare, in Circular No. 186 of 1 July 1987, informed INEFOS that Dr. Oliver Orellano Rosales had been appointed administrator and that its official documents and accounts must be sent to him and to several auditors: this had prevented INEFOS from operating normally.

&htab;45.&htab;The WCL also states that according to Ecuadorian television the Minister of Social Welfare had hurriedly made accusations against INEFOS, on the basis of fragmentary documentation which it had obtained from that organisation; the Ministry had sought thereby to arouse real hostility against INEFOS for clearly political and pro-governmental purposes and with the object of securing the withdrawal of its legal personality and the confiscation of its property.

&htab;46.&htab;In its letter of 21 October 1987, the Government states that it was acting in virtue of its power to regulate public order and safety in relation to a civil - not a trade union - body which was suspected of committing reprehensible acts.

&htab;47.&htab;The Government explains at length that the body placed under trusteeship is an association subject to the provisions of the Civil Code (sections 584, 586, 588, 590, 593 and 596) and that, in accordance therewith, corporations and foundations, as civil associations, are responsible for any frauds, peculations and embezzlements attributable to their representatives.

&htab;48.&htab;Accordingly, the Government continues, in May 1987 the President of the Republic issued Decree No. 2947, according to which the authority which had granted legal personality to a non-profit making association, could appoint an administrator who would check whether the said association was devoting itself fully to the purposes for which it had been established. This was a general measure, prompted by the well-founded suspicion that several of the bodies in question had been dishonestly managed or that their officers were committed to the service of foreign interests which might well be contrary to those of Ecuador.

&htab;49.&htab;The Government also states that, in virtue of Decree No. 2947, the Minister of Social Welfare instructed an administrator to take charge of INEFOS after several improper acts had been discovered. In addition, it appends to its reply copies of several communications signed by the director of INEFOS, dated February, March and April 1987, which - in the Government's opinion - prove considerably that there had been cases of embezzlement and misuse of the Association's funds for the benefit of an unrelated organisation, namely a political party calling itself "People's Democracy". According to the Government, this evidence sufficed to bring the representatives of the relevant association before a court of law.

&htab;50.&htab;The Government also appends other communications signed by the director of INEFOS, including one dated 10 April 1987, addressed to the President of CEDOC and asking him to make representations to the Latin-American Central of Workers (CLAT) so that the latter would request a certain "Konrad Adenauer Foundation" not to reduce the subsidy in German marks sent by it to INEFOS, and other similar documents.

&htab;51.&htab;The Government maintains that the above documents demonstrate the links existing between the CLAT, the WCL and the Konrad Adenauer Foundation, and that they are indications of foreign intervention in the internal affairs of Ecuador. It adds that the administrator's report into the accounts of the "non-profit making" corporation reveals assets of 640,000 German marks and US$253,694 - coming from foreign sources - for the two-year period 1985-86; that 50 per cent of those resources were paid to CEDOC without documentary justification; that some money was paid on various pretexts to finance political campaigns; and lastly that the director of INEFOS had acquired for himself a big insurance policy out of funds which ought to have been deposited to the credit of INEFOS.

&htab;52.&htab;In conclusion, the Government states that in virtue of Ecuadorian law the association in question ought to be dissolved on formal and on substantial grounds and that the Government has sent a diplomatic note to the Federal Republic of Germany protesting against foreign interference in Ecuadorian affairs; the note reminds the Federal Republic that the German foundations, which concluded contracts with the Ecuadorian Government in 1974, 1979, 1983 and 1985, with a view to the economic, social, cultural and technical development of Ecuador in both the public and the private sectors, remain subject, on the territory of Ecuador, to Ecuadorian law; for that reason the foundations have been asked to send accounts for verification by Ecuadorian agencies.

&htab;53.&htab;The complaint involves allegations of government interference in the running of a private social development association, whose function is the training of trade union officers, this organisation being attached to a trade union confederation. The versions put forward by the complainant organisation and the Government on the matter are contradictory. According to the complainant, the association was unjustly placed under trusteeship and it was wrongly accused, on the basis of fragmentary documentation, of improper management. According to the Government, on the other hand, the said association, not being a trade union organisation but a non-profit making body subject to civil law, was indeed taken over by the authorities because it was suspected of irregularities in management, abuse of social property and diversion of subsidies coming from foreign foundations, particularly one in the Federal Republic of Germany, for the benefit of a political party.

&htab;54.&htab;In the Committee's view, it is generally recognised that when accounts are being audited, the auditors should have the appropriate professional qualifications and be independent persons, a judicial inquiry into the internal management of an occupational organisation such as to guarantee impartial and objective procedures is of special importance in the case of the management of trade union property and finances.

&htab;55.&htab;In the present case, the Committee points out that the Government disputes the trade union character of the association under trusteeship. The Committee observes further that the investigations made by the administrator show that part of the funds of INEFOS have been used to finance the propaganda activities of a political party.

&htab;56.&htab;Since financing of the above kind goes beyond the parameters of normal trade union activity, the Committee considers that it should be left to the judicial authorities of the country to give a ruling on this matter.

&htab;57.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the case does not call for further examination.

&htab;58.&htab;By a communication dated 25 June 1987 the United Industry Workers' Local 424 (UIW) presented a complaint of violations of trade union rights against the Government of the United States. It supplied further information in a letter dated 10 July 1987. The Government supplied its observations on this case in a communication dated 14 October 1987.

&htab;59.&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;60.&htab;In its communication of 25 June 1987, the UIW alleges a series of anti-union practices - ranging from withholding of wages and lengthy legal proceedings to the illegal dismissal of 200 UIW members - carried out on UN headquarters premises in New York in an effort by the concessionaire to deny freedom of association and, more particularly, to avoid collective bargaining.

&htab;61.&htab;The UIW, an independent nationally recognised workers' organisation with over 2,000 members, claims that an agency of the executive branch of government of the United States has wilfully neglected laws designed to protect the rights of workers and selectively enforced laws regarding sovereign immunity. This pattern of conduct has caused the denial of timely certification of the validly elected union and the frustration of the legitimate efforts of workers to bargain collectively with their employer.

&htab;62.&htab;The UIW outlines the circumstances surrounding its complaint as follows: on 17 October 1983, the UIW received a letter signed by "a group of desperate workers!", including the signatures of shop-stewards and workers employed at UN headquarters in New York, many of whom had worked on UN premises since 1946. The letter complained of wages improperly withheld, illegal firings and sexual harassment on the job by the employer, Canteen Corporation, the corporate food service caterer under contract with Commercial Management Services (CMS), an agency of the UN. The UN agency was apparently indifferent to these problems, and the employees had first turned to their then union - Hotel Employees and Restaurant Employees Local 100 (AFL-CIO) - for help. The UIW states that the workers decided to change their union and over 90 per cent of them signed UIW membership cards. On 13 November 1984 a petition was filed with the National Labor Relations Board (NLRB) for a union representation election.

&htab;63.&htab;The UIW alleges that for six months the attorneys for Canteen Corporation stalled and blocked the NLRB from holding an election. Canteen Corporation claimed that while it had voluntarily recognised the AFL-CIO Local, the workers concerned did not have the right to vote for another union because the NLRB did not have jurisdiction in the UN. According to the UIW, it thus was choosing to ignore UN directives to the contrary. The UIW states that the employer used the time delay to coerce and threaten workers, telling them they would "lose everything" if they changed unions.

&htab;64.&htab;On 12 April 1985 at the Hotel Tudor in New York City, states the complainant, the NLRB ordered and held, over the objections of Canteen Corporation, a representation election by secret ballot. Permission could not be obtained to hold the election on UN premises. The employer's attorneys, however, had the ballots impounded by appealing the decision to allow the election (in a "Request for Review") - originally made by a regional office of the NLRB - to the full NLRB in Washington DC. On 27 March 1986, 16 months after petitioning for a representation election and still with no decision on the outcome or the validity of the election, the UN suddenly terminated its contract with Canteen Corporation and the 200 workers involved were fired.

&htab;65.&htab;The complainant states that the UN brought in a new caterer (Restaurant Associates Industries Inc.), which engaged a law firm having acquired the services of a recently retired senior NLRB official.

&htab;66.&htab;On the same day as the dismissals the NLRB finally counted the ballots, but some challenges concerning the eligibility of voters were raised. The complainant states that on 30 June 1986 the NLRB rendered its decision regarding the challenged ballots, all of which were found in favour of the UIW. However, it was not until 22 August 1986 (i.e. 21 months after the UIW had filed its original petition) that the NLRB finally certified it as bargaining agent for Canteen Corporation's employees in the UN food service and retail concession units. According to the complainant, now that it was empowered to act on behalf of these employees, the UIW contacted the UN and the new caterer, as successor employer, so as to commence collective bargaining, but was refused any meeting.

&htab;67.&htab;The UIW immediately filed unfair labour practice charges in the appropriate NLRB regional office against the UN agency Commercial Management Services (CMS) and against the new caterer, but these charges were mysteriously assigned to another region whose recently retired director now worked for the law firm representing Restaurant Associates Industries Inc., the new caterer. The UIW explains that, apparently, at the time it filed the charges, the NLRB had already decided that the new caterer was not a successor employer and that CMS was, by virtue of sovereign immunity, not within the jurisdiction of the NLRB, therefore neither was bound by the election. The UIW claims that this decision to reject its charges was arrived at either in ignorance of, or indifference to, the following facts: the UN had, on more than one occasion, conceded that labour disputes involving the food service and retail concession workers were under NLRB jurisdiction; and the UN through CMS had the final say over the conditions of employment of the food service and retail concession workers and had considerable control over the operations of Canteen Corporation and its successor, Restaurant Associates Industries Inc.

&htab;68.&htab;The UIW therefore alleges that because it had been denied the opportunity to argue against this conspiracy to thwart the election results, it found itself in the incredible position of being the certified representative of 200 illegally dismissed workers with no one to whom it could appeal and no one with whom it could bargain.

&htab;69.&htab;The complainant attaches several supporting documents to its complaint, two of which are letters from the NLRB (dated 31 July and 17 November 1986) rejecting the allegations of unfair labour practices lodged against the Commercial Management Services of the UN. In these letters the NLRB Regional Director states that the United Nations -

... is exempted from the Board's jurisdiction under the Public International Organizations Act, which sets forth the privileges and immunities of the United Nations. You contend that the Headquarters Agreement between the United Nations and the United States in effect constitutes consent to the application of US law to the United Nations. I note, however, that the United Nations does not interpret the Headquarters Agreement in this manner and contests an assertion of jurisdiction by the NLRB in this case. Moreover the Agreement seems to refer to the application of US law to the premises of the United Nations but not to the application of such law over the United Nations as an entity. Thus in the absence of any clear consent by the United Nations to the jurisdiction of the National Labor Relations Board, I conclude that the Board is precluded from asserting jurisdiction over Commercial Management Services, a division of the United Nations.

&htab;70.&htab;On the other hand, another attachment to the complaint is a letter addressed on 26 February 1985 to the UIW by the UN Assistant Secretary-General for General Services which states:

As far as the United Nations is concerned, the question of representation of Canteen [Corporation's] employees by any particular labor union is a question to be resolved in accordance with the normal procedures of United States labor law, which law is applicable within the Headquarters district because it has not been excluded by any United Nations Regulation. However, no one, including officials of governmental agencies such as the NLRB, may have access to the Headquarters district without our consent.

&htab;71.&htab;In its communication of 10 July 1987, the UIW attaches copies of its pleas for assistance addressed to various personalities and bodies, as well as an earlier collective agreement covering the UN food service and retail concession workers. The agreement, signed on 1 February 1980 for two years by the Hotel, Restaurant and Club Employees and Bartenders Union (AFL-CIO) and a Trusthouse Forte subsidiary, provided that the agreement would be transferred or assigned to any successor employer. The complainant also provides a copy of the updated renewal of Trusthouse Forte's agreement proposed by its successor, Canteen Corporation, and of the agreement itself, to be in force from 1 February 1982 to 31 January 1985. This second collective agreement contains the same provision concerning its transfer or assignment to any successor employer.

&htab;72.&htab;In its communication of 14 October 1987, the Government does not dispute the description of the facts in this case given by the complainant, but adds certain clarifications. For example, it supplies a copy of the March 1985 NLRB "Decision and Direction of Election" which was issued in favour of the UIW's petition for a representation election and which rejected Canteen Corporation's arguments on its lack of jurisdiction. It likewise supplies a copy of the NLRB's June 1986 "Order directing that certain ballots be counted" from which it emerges that the employer had withdrawn its "Request for Review" in February 1986.

&htab;73.&htab;The Government also points out that the change of concessionaire had already been arranged in February 1986, and in early March Restaurant Associates Industries Inc. solicited employment applications from Canteen Corporation employees. Sixteen of them were offered positions with the new employer which also hired its own complement of employees. The Government explains that after the March changeover in employer, several former employees twice filed unfair labour practice charges with the NLRB alleging anti-union bias in the refusal to re-hire them and discriminatory termination of employment; these charges were found to be without merit, and on appeal, it was confirmed that that the dismissals were not unlawful and, in any event, CMS was exempted from judicial process by the federal Public International Organization Act of 1945.

&htab;74.&htab;As regards the specific allegation that the NLRB improperly refused to assert jurisdiction over CMS, the Government states that the NLRB's decision is fully supported by well-established United States labour law, including the Public International Organization Act (which provides that international organisations, such as the UN, are immune from every form of legal process as is enjoyed by foreign governments, except when the immunity is expressly waived by treaty or expressly limited by statute). Moreover, the Government denies that the UN letter of 26 February 1985 referred to by the complainant amounts to a waiver of immunity. To support this, the Government supplies a copy of a July 1986 letter from the UN Legal Counsel to the NLRB which stresses that CMS, being a unit of of the UN secretariat and the UN being exempt from every form of legal process by virtue of the 1945 Act, the UN Charter and the Convention on Privileges and Immunities of the UN (to which treaties the United States is a party), cannot be made subject to NLRB proceedings. The Government adds that there is no express waiver to or limit on the UN's immunity to suit, and that nothing in Conventions Nos. 87 or 98 limits the NLRB's discretion to assert or decline jurisdiction.

&htab;75.&htab;As regards the NLRB's rejection of the unfair labour practice charges, the Government points out that they were fully investigated in an impartial manner with the parties' procedural rights being fully protected. The Regional Director's determinations were appealed to the General Counsel of the NLRB who confirmed that, on the facts, there was insufficient evidence that the new employer or CMS had violated the National Labor Relations Act.

&htab;76.&htab;The Government denies that there was a deliberate tardy handling of the UIW's representation case. It states that, once the UIW's position was filed, the usual administrative process of investigation and hearings went ahead with the procedural rights of all parties being protected. According to the Government, it is not necessarily incompatible with Convention No. 87 for legislation to provide for certification of the most representative union in a given unit when certain safeguards are provided; such safeguards in this case included: a review of the decision to hold the election; secret ballot during the election; a delay in counting the ballots and impounding of the ballots upon the employer's challenge. After the challenge had been settled the NLRB certified UIW as the exclusive bargaining representative of Canteen Corporation's employees at certain UN restaurants, cafeterias and kiosks.

&htab;77.&htab;According to the Government, given the number of procedural steps involved and the complexity of the issues raised, the time taken for the NLRB to certify UIW was not unreasonable. More importantly, it states, the rights of the workers to freely elect their collective bargaining agent, as guaranteed by Convention No. 98, were fully protected in this case.

&htab;78.&htab;As regards the allegation that the NLRB's rejection of Restaurant Associates Industries Inc. as the successor to Canteen Corporation denied the collective bargaining rights of the workers involved, the Government emphasises that Canteen Corporation's contract with the UN terminated at the end of March 1986. Thus the August 1986 representation certification only covered those former Canteen Corporation employees who stayed on under the new caterer. The Government explains that under United States labour law a new employer is a successor employer only when the bargaining unit remains unchanged (the new employer having hired a majority of the employees in question) and would then be required to recognise a recently certified bargaining agent of these employees. The NLRB therefore correctly concluded that there was no violation of the National Labor Relations Act when Restaurant Associates Industries Inc. refused to bargain with the UIW.

&htab;79.&htab;As regards the complainant's statement that its charges were "mysteriously assigned" to another NLRB regional office for investigation, the Government states that the NLRB official investigating the matter was temporarily assigned from region 29 (Brooklyn) to region 2 (New York City) only during the currency of the UIW's case. Such reassignments, being inter-office matters, are at the discretion of regional directors. According to the Government this transfer did not affect the investigation of the charges or the procedural rights of the parties.

&htab;80.&htab;The Committee would first observe that, although the workers involved in this case happened to work on United Nations premises, they are not UN employees. They were employed by a private catering company which won a concessionaire contract to supply food and catering services at UN headquarters. In addition, the UN Assistant Secretary-General for General Services, in a letter of 26 February 1985, clearly stated that the national legislation governed the employment of the workers concerned.

&htab;81.&htab;To turn to the substance of the case, the Committee notes that two main sets of violations of freedom of association are alleged: (1) that the NLRB did not handle the UIW's petition for certification and its charges of unfair labour practices in an expeditious and fair manner; and (2) that the present employer - a private company - of staff in UN restaurants, cafeterias and kiosks is refusing to bargain with the UIW.

&htab;82.&htab;On the first issue the Committee notes that it indeed took 21 months (from 13 November 1984 to 22 August 1986) for the complainant union to achieve certification as the exclusive bargaining agent for certain workers on UN premises. At the same time it does not consider this to be an unreasonable period given the fact that, over these months, the NLRB had to deal with several not unusual procedural questions which the employer was entitled to raise under the legislation (e.g. requests for review, challenge of ballots). The Committee recognises that each procedural move by the employer was handled with respect for due process. It also notes that the UIW appears to have won on all the early procedural points concerning the certification election. Moreover, the Committee notes from the Government's reply that between the March 1986 changeover in employer and the August 1986 certification, it was the former employees - rather than the employer - who were continually using NLRB procedures.

&htab;83.&htab;The Committee also observes that the complainant's suggestions of improper treatment of its unfair labour practices charges are not supported by evidence. The Government clearly explains that it was the NLRB investigating official who was transferred in this case and not the UIW's case. It also emerges from the facts that the NLRB correctly dismissed the charges laid against the UN agency which, in any case, is not the employer of the workers in question. The Committee accordingly decides that this aspect of the case does not involve violations of freedom of association.

&htab;84.&htab;As for the NLRB's rejection of Restaurant Associates Industries Inc. as successor employer and its decision that this new caterer was not obligated to bargain with the UIW, the Committee observes that the UIW was duly certified as bargaining agent for the 200 or so Canteen Corporation employees of whom only 16 were re-employed by the new caterer. According to the national legislation in question, the UIW has no right to force the new caterer to bargain with it in respect of its present employees since the composition of the bargaining unit has changed. The ILO supervisory bodies' position on the recognition of trade unions for collective bargaining purposes has always been that, where systems provide for the most representative trade union to have preferential or exclusive bargaining rights, it is important that the determination of the union in question should be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse [see General Survey on Freedom of Association and Collective Bargaining , ILC, 69th Session, 1983, Report III (Part 4B), para. 295]. Moreover, the Committee on Freedom of Association has stressed the importance of the principle that employers should recognise, for the purposes of collective bargaining, the organisations which are representative of the workers they employ [See 207th Report, Case No. 886 (Canada), para. 97].

&htab;85.&htab;In the present case, the Committee is bound to note that the UIW now only represents a small minority of the workers employed by the new caterer and that, accordingly, there was no violation of the above principles when the employer refused to meet with it. The Committee would observe, however, that it no doubt remains open to the UIW to campaign and petition for coverage of the other food service workers on UN premises if it so wishes.

&htab;86.&htab;In the light of the foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

&htab;87.&htab;The complaint is contained in two communications from the Workers' Union of the General CEAT Company of Colombia, S.A., dated 21 August and 21 September 1987. The Government supplied its observations in communications dated 21 October 1987 and 26 January 1988.

&htab;88.&htab;Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

&htab;89.&htab;In its communication of 21 August 1987, the Workers' Union of the General CEAT Company of Colombia alleges that the undertaking infringed trade union rights on 11 August 1987 by dismissing Luis Antonio García and Carlos Arturo Ceballos, the President and General Secretary of the Union, without complying with the legal procedure for the dismissal of workers enjoying trade union immunity; it is also alleged that the undertaking disregarded the officials' entitlement to time off for trade union purposes and failed to recognise the Workers' Central Organisation (CUT) to which the Union is affiliated at the national and regional levels.

&htab;90.&htab;The communication states that the General CEAT undertaking of Colombia has, by these acts, violated the trade union rights embodied in the Colombian Labour Code, specifically: section 353 which guarantees the right of employers and workers to defend their interests by freely forming occupational associations or unions which, in turn, have the right to join together or to form federations; section 405 in respect of trade union immunity, which establishes the guarantees enjoyed by certain workers who may not be dismissed without just cause attested to by a labour court; and section 406 which lists the workers who may be covered by such guarantees.

&htab;91.&htab;The complainant's communication adds that with these dismissals, the undertaking has infringed article 19 of the Universal Declaration of Human Rights in respect of freedom of opinion and expression, Article 1(1) and (2)(a) and (b) of Convention No. 98 and Article 1 of Convention No. 135. The complainant adds to its communication the letters sent to Luis Antonio García and Carlos Arturo Ceballos informing them of their dismissal and a copy of the minutes of the meeting of the joint committee of the undertaking and of the Union, held on 11 August 1987, and at which the parties were unable to reach an agreement on the dismissals.

&htab;92.&htab;In its other communication, dated 21 September 1987, the complainant states that the Departmental Division of Labour and Social Security of the town of Cali was requested to undertake an administrative investigation in respect of the General CEAT undertaking of Colombia, but that at the time of writing there had not been a favourable decision regarding the reinstatement of Luis Antonio García and Carlos Arturo Ceballos.

&htab;93.&htab;In its communication of 21 October 1987 the Government states that according to the chief of the "Sección de Colectivos" of the Valle Departmental Division of Labour and Social Security, the situation of Mr. Luis Antonio García and Mr. Carlos Arturo Ceballos viz-à-vis the General CEAT undertaking of Colombia involves two different aspects: their dismissal as workers and their subsequent removal from trade union office.

&htab;94.&htab;Firstly, as regards dismissal from the undertaking, it must be made clear that a dismissed worker is entitled to bring an action for reinstatement before the ordinary labour courts (section 118 of the Code on the procedure to be followed in labour matters, as amended by section 6 of Decree 204 of 1957); the dismissed worker may also, if he deems fit, bring a charge before a criminal court for trade union persecution or infringement of the right of association. Mr. García and Mr. Ceballos, like all citizens, are fully entitled by law to bring an action in a labour court for the restoration of their rights if they consider, and can prove before such a court, that these rights have been infringed; the law also entitles them to bring charges before a criminal court seeking the sanctioning of the undertaking if it is proved that there has been infringement of the relevant provisions. It must be fully realised that under the laws in force only the labour courts are competent to deal with and give rulings on cases concerning trade union immunity and that consequently the Ministry of Labour and Social Security is absolutely prohibited from giving a ruling on such matters; such intervention in matters that come within the legal jurisdiction of another branch of public authority would amount to a misuse of power. Similarly, the Ministry is not empowered to decide whether a party (the undertaking) committed the offence of infringing freedom of association or the right of association since such matters come with the jurisdiction of the criminal courts.

&htab;95.&htab;The Government stresses in its communication that it is up to the person concerned both to bring an action for reinstatement before a labour court and, if deemed appropriate, to bring a charge before a criminal court for violation of the section of the Penal Code which prohibits attacks on the right of association; no provision is made for this to be dealt with by court officials on their own initiative.

&htab;96.&htab;Secondly, the Government goes on to say that the investigation being carried out by the Valle Departmental Division for Labour and Social Security is a consequence of the objection made to the election of the new executive of the Workers' Union of the General CEAT Company of Colombia, S.A., which took place at the general assembly of 16 August 1987. The general assembly of the Union's members had been convened on that date and, in the course of the meeting, when the agenda was being submitted for consideration, one of the members requested that it be modified to include the election of a new executive. This proposal was approved. In the course of the meeting three other members of the Union's executive (i.e. not Mr. García or Mr. Ceballos) submitted their resignations which, as stated in the minutes of the general assembly, meant that a new executive had to be elected, as was done at the unanimous and free decision of the supreme decision-making body of the Union.

&htab;97.&htab;Nevertheless, former worker Ceballos lodged an objection to the election of the new executive before the Valle Departmental Division. A decision was reached on this objection in ruling No. 1029, dated 16 September 1987, in which the objection was rejected as it had been proved that the Union's general assembly and the election of the new executive had taken place in accordance with the law and had involved no irregularities whatsoever. This ruling was appealed against and the matter was settled in a further ruling, No. 1045 of 29 September 1987, which fully upheld the earlier one. The Government's communication adds that it is perfectly clear that there was at no time negligence on the part of the Ministry of Labour and Social Security in its decision concerning the matter brought before it by Mr. Ceballos.

&htab;98.&htab;The Government's communication states that the complainant organisation cannot maintain that trade union rights are not guaranteed and that it should be noted, as regards trade union immunity, that although Mr. García and Mr. Ceballos were dismissed from the General CEAT undertaking of Colombia, without the requisite authorisation of the labour court, they are entitled to bring an action for reinstatement before a labour court in accordance with section 118 of the Code on the procedure to be followed in labour matters; the Ministry of Labour and Social Security is not empowered to order the undertaking to reinstate the dismissed persons. With regard to the right of association, if the persons in question consider that the undertaking has infringed this right in dismissing them, they are entitled to bring charges before the competent criminal court since it is not within the jurisdiction of the Ministry to give a ruling on the matter.

&htab;99.&htab;As regards membership of the Union's executive, the Substantive Labour Code provides that this body can be made up of whatever number of members that are freely elected, but that only five principal members and five deputy members enjoy trade union immunity (section 406). The union's general assembly is empowered both to elect members of the executive and to remove them from office when it deems this to be appropriate. Although Mr. García and Mr. Ceballos did not cease to be union members when they were dismissed from the undertaking, they could be removed from their position on the executive by the vote of the general assembly of the trade union organisation. Since Mr. Ceballos was not in agreement with his removal from the executive, he protested to the Ministry of Labour and Social Security against the election of the new executive; the Ministry decided not to entertain his protest since there had been no irregularities in the said election.

&htab;100.&htab;Finally, the Government's communication states that no complaint was received concerning refusal to allow time off for trade union activities and that it does not see how it can be maintained that there was failure to recognise the Workers' Central Organisation (CUT), a trade union organisation whose legal personality and representativity are beyond doubt.

&htab;101.&htab;In its communication of 26 January 1988, the Government states that it must stress the exclusive role of the labour courts in deciding whether or not the decision to dismiss Messrs. Garcia and Ceballos was in conformity with the law. Likewise, it is for the criminal courts to decide, if served with a claim by one of the persons affected, whether the undertaking acted in violation of the right to associate when it dismissed these above-mentioned persons.

&htab;102.&htab;The Committee notes the complainants' allegations, in particular the dismissal of Mr. Luis Antonio García and Mr. Carlos Arturo Ceballos, trade union leaders from the General CEAT undertaking of Colombia, refusal to allow time off for trade union activities and failure to recognise the Workers' Central Organisation (CUT) to which the said Union is affiliated.

&htab;103.&htab;The Committee observes that trade union leaders Mr. García and Mr. Ceballos were dismissed without the undertaking paying heed to the legal safeguards (section 405 of the Substantive Labour Code) afforded to workers enjoying trade union immunity, as was the case of the above-mentioned leaders; in fact the employer had not requested the authorisation from the labour court for the dismissals. These were therefore an infringement of the trade union freedoms of these workers.

&htab;104.&htab;The Committee also notes the information provided by the Government, especially regarding the right conferred by law to bring action for reinstatement when dismissal is considered to be unlawful or unjust, it being up to the persons concerned to bring such charges before a labour court. In the present case recourse was not had to such action.

&htab;105.&htab;Furthermore, as regards the renewal of the Union's executive by its general assembly, and the fact that Mr. García and Mr. Ceballos were not elected after their dismissal, the Committee notes that this was the unanimous and free decision of the members attending the general assembly and that the election was investigated by the administrative authority (following the protest lodged by Mr. Ceballos) which ruled that the meeting and the election had been held in accordance with the law and involved no irregularities whatsoever. In any case the Committee observes that apparently there is no obstacle in the law in force to prevent Mr. García and Mr. Ceballos from continuing to be trade union leaders even after their dismissal from the undertaking.

&htab;106.&htab;Lastly, the Committee notes that the Government has not received any complaint concerning the refusal to allow time off for trade union activities, or concerning the alleged failure to recognise the legal status of the CUT which, according to the Government, enjoys legal personality and representative status.

&htab;107.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body, in view of all the information before it, to decide that this case does not call for further examination.

&htab;108.&htab;The National Trade Union of Civil Aviation Flight Personnel (SNPNAC) presented a complaint of violations of freedom of association against the Government of Portugal in a communication dated 16 September 1987. The Government sent its comments and observations in communications dated 14 and 28 January 1988.

&htab;109.&htab;Portugal 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;110.&htab;The SNPNAC states that it is a trade union association which has been legally established under Portuguese legislation, its rules having been published in the Official Gazette. Most of its members are employed by the Portuguese airline, TAP, a public civil aviation undertaking whose main activity is overseas air transportation, explains the complainant trade union.

&htab;111.&htab;It states further that it is currently engaged in an industrial dispute started by TAP, through its board of directors, and which, in practice, infringes the trade union rights and the right to collective bargaining of its members, who are protected by Conventions Nos. 87 and 98, ratified by Portugal.

&htab;112.&htab;The complainant trade union explains that TAP is a nationalised undertaking placed under direct government supervision, that the members of its board of directors are all appointed by the Government and that, in 1980, the undertaking was declared by the Government to be in a "difficult economic situation", which meant that the rights negotiated in collective agreements have been significantly restricted by the application of new rules replacing the provisions of freely concluded agreements.

&htab;113.&htab;The complainant describes the situation as regards the regulations governing working conditions in this branch. It explains that collective labour relations are now governed by an enterprise level agreement and an arbitration award which have cancelled certain controversial clauses following an arbitration procedure voluntarily undertaken by the parties. Both the agreement and the arbitration award were published in the Boletin do Trabalho y Emprego , Series 1, No. 10, 1985, of which the complainant trade union encloses a copy. It also specifies that at the time when these texts were published, the hours of work of cabin personnel, who account for nearly all of SNPNAC members, were governed by Decree No. 31/74, enclosed with the complaint. However, while negotiations on the above-mentioned enterprise-level agreement were taking place, two draft regulations on the minimum cabin crew and on the hours of flight duty and rest of flight personnel in air transportation were published in the Boletin do Trabalho y Emprego in order to inform the public, in accordance with Act No. 16/79. The draft amendments to Decree No. 31/74 provided that the maximum (continuous) flight duty time would be 15 hours for cabin flight personnel.

&htab;114.&htab;The arbitration award accepted by the SNPNAC therefore took this into account in the wording of clause 46-A, explains the complainant trade union. As a result, the maximum flight duty time for cabin crew is 13 and a half hours (clause 46-A, paragraph 1), but under paragraph 7 of the same clause, this limit may be exceeded at the captain's initiative, "should such a change be necessary to the performance of flight duty, that is, the upper limit provided for in paragraph 1 may be raised to 15 hours".

&htab;115.&htab;In accordance with this provision (clause 46-A of the arbitration award) and in view of the fact that in Portugal collective labour instruments may fix lower limits on hours of work than those set by legal standards (section 6(1)(c) of Legislative Decree No. 519/C1/79 of 21 December 1979), the SNPNAC's interpretation has always been that the maximum duration of flight duty for cabin crew is 13 and a half hours (paragraph 1), although the captain may increase the limit to 15 hours if necessary. According to the complainant trade union, the wording of this clause does not raise any doubts.

&htab;116.&htab;It explains that hours of flight duty and rest of flight personnel were subsequently governed by Ministerial Order No. 408/87 of 14 May 1987, which terminated the effect of Decree No. 31/74. Until this Ministerial Order was published, no questions had been raised as to the interpretation of clause 46-A of the arbitration award; at one point, the parties even changed the wording temporarily of paragraph 7 of that clause by deleting the last part specifying a 15-hour time-limit. However, shortly after publication of the Order, the undertaking alleged that it enabled the captain to exceed the limit on flight duty time laid down in the arbitration award in order to complete a flight or return to base, by raising it to the maximum laid down in the above-mentioned Ministerial Order.

&htab;117.&htab;TAP, which interprets the maximum limits as being those laid down in the Ministerial Order, concluded that the duration of a flight scheduled to last 13 and a half hours may be prolonged to 18 hours for the cabin flight crew, that is, 15 hours (the upper limit set in section 4 of the Order) plus three additional hours in the event of unforeseen reasons or force majeure as provided in section 8 of the Order. According to the complainant, however, this attitude infringes the right to conclude collective labour contracts allowing the parties the right to regulate their interests themselves by setting lower limits on hours of work than those provided for in legislation.

&htab;118.&htab;The complainant trade union refutes the argument that such an increase in flight duty time would only occur in exceptional cases. In fact, in its view, the terms of the collective labour instrument make provision for such situations, as has been demonstrated, by limiting them to what was laid down in the arbitration award.

&htab;119.&htab;The complainant states further that TAP insisted on imposing its interpretation, obliging cabin personnel to perform a maximum of 18 hours' flight duty, and instituted disciplinary proceedings against ten SNPNAC members accused of having refused - in conformity with the arbitration award - to work beyond the upper limit fixed in this agreement. It encloses a photocopy of one of the reprimands sent to one of its members and the reply made to it.

&htab;120.&htab;The complainant trade union adds that, in protest, it issued a strike warning to the undertaking which, faced with the firm stand taken by the trade union, following a number of discussions, agreed to cancel, without loss of remuneration, the suspensions which had been unlawfully imposed and to conduct a thorough inquiry into the facts concerning the flight which gave rise to the proceedings. The SNPNAC therefore called off the strike.

&htab;121.&htab;In the agreement protocol which was drawn up at the time, the SNPNAC, in a conciliatory spirit, stated that it would make every effort so that the agreed limits on flight duty time could be exceeded in genuinely exceptional circumstances. But the signatories of the agreement protocol did not have the necessary powers to revise the enterprise-level agreement in force, and therefore clause 46-A of the arbitration award was at no time changed, according to the complainant trade union.

&htab;122.&htab;Thus, the consensus reached only reflects the union's good faith and its intention to recall that, in situations where the undertaking had no other alternative, cabin personnel would continue to display goodwill by agreeing, if necessary, to exceed the limits fixed by the parties.

&htab;123.&htab;The complainant trade union states further that it goes without saying that it never agreed to annul clause 46-A or to allow the undertaking to impose a limit on flight duty - once the schedule has been fixed - of 18 consecutive hours.

&htab;124.&htab;It is to be deplored that, immediately after signing the protocol, TAP publically stated through the public communication media that the SNPNAC had accepted the obligation for its members to perform 18 consecutive hours of flight duty, should the captain so decide. The SNPNAC retaliated immediately by having a motion of protest approved by the general assembly of its members. TAP, which persisted in refusing to apply the provisions contained in the collective labour instrument, again issued a public statement expressing its intention to distort the letter and the spirit of the arbitration award.

&htab;125.&htab;In view of the above, the complainant trade union considers that it should be stated that in the case at issue, the board of directors of TAP, placed under the supervision of the Portuguese Government, infringed the right to freedom of association and to conclude collective labour agreements, by refusing to respect the enterprise-level agreement and the arbitration award on flight duty time for cabin personnel, which contain more favourable provisions than those of the law which it insists on imposing at all costs.

&htab;126.&htab;In its reply dated 14 January 1988, the Government communicates the information it has gathered from the ministry in charge of supervising the public undertaking TAP and from the latter's board of directors, from which it appears that the facts are as follows.

&htab;127.&htab;In 1985, Legislative Decree No. 56 of 4 March 1985 was issued in accordance with national technical standards on the operation of aircraft and with the recommendations of the International Civil Aviation Organisation. This Legislative Decree vests the Ministry of Equipment with the power to issue regulations, in the form of an order, on various matters, including "the duration of flight duty and rest of crews of aircraft engaged in commercial and private air transportation".

&htab;128.&htab;Section 5 of Legislative Decree No. 56/85 repeals Decree No. 31/74 cited by the complainant trade union, but provides that the latter's provisions shall temporarily remain in force until publication of the above-mentioned Order.

&htab;129.&htab;The Government considered that the matters dealt with in the Order, although of a technical nature, could be interpreted in a certain way as constituting labour legislation, and therefore the draft in question was submitted for public discussion under the conditions laid down in Act No. 16/79 respecting workers' participation in drafting labour legislation.

&htab;130.&htab;The Government stated that the complainant trade union outlined its position on the contents of the draft Order in a written contribution, of which it sends a copy, and that Order No. 408 of 14 May 1987 was subsequently published.

&htab;131.&htab;The Government concludes that the persons concerned were heard at the time when this text was being drawn up and that the principles of tripartism on which the ILO's work is based have been taken into consideration.

&htab;132.&htab;As regards the totally exceptional and unpredictable situation which occurred only once, in which a captain ordered continuation of a flight, thus extending flight duty time within the limits and conditions laid down in section 8(2) of the regulations approved by Order No. 408/87, and under the control of the competent aeronautical authority, in conformity with subsection 3 of the same section 8, the Government, while admitting the facts, states the following.

&htab;133.&htab;According to the Government, this entirely exceptional possibility is only justifiable in the event of unforeseen reasons and force majeure and was already provided for by the draft submitted to public discussion, as may be seen from the document which it encloses with its reply.

&htab;134.&htab;The complainant trade union acknowledged and accepted the possibility of such an exceptional prolongation, although it would have liked to limit it to one hour, as was stated in the contribution made by the trade union regarding the above-mentioned draft, on 12 November 1985, in the course of the public discussion.

&htab;135.&htab;Moreover, according to the Government, international provisions concerning hours of work allow the limits to be exceeded in exceptional circumstances (see international labour Conventions Nos. 1, 30, 43, 46, 51, 61, 67 and 153).

&htab;136.&htab;In the present case, considers the Government, it follows from the documents enclosed with the complaint and the additional information provided by TAP in its reply, of which the Government encloses a copy, that the Lisbon-Montreal-Toronto flight (TP 302 of 29 July 1987) arrived in Montreal two hours and 28 minutes late for unforeseen technical reasons. Failure to continue the flight to Toronto would have caused serious prejudice, since 76 passengers would have had to spend the night in Montreal or be transported by another airline at TAP's expense. This is why the captain decided to avail himself of the exceptional power conferred on him by section 8(2) of Order No. 408/87, ten members of the cabin personnel having refused to continue the flight.

&htab;137.&htab;As regards the disciplinary proceedings allegedly instituted against members of the cabin crew, the Government states that it is unable to confirm facts of which it is unaware and which concern cabin crew members affiliated to the complainant trade union and the TAP undertaking. Nevertheless, adds the Government, considering the form of the present complaint, this is a matter for the Portuguese courts, to which both sides may present their arguments.

&htab;138.&htab;In a subsequent communication, dated 28 January 1988, the Government communicates the observations of the board of directors of TAP on this matter, in which the employer specifies that under section 8(2) of the regulations approved by Order No. 408/87, the limits on hours of work may be extended in the event of unforeseen reasons and force majeure , in which case the captain must justify his decision and send a report within 15 days to the General Directorate of Civil Aviation (subsection 3 of section 8). In the case in question, such a report was in fact sent to the competent authority, which noted that the period of flight duty had hardly exceeded 30 minutes, whereas the captain, under the legal provisions in force, had authority to exceed the statutory limit on flight duty time by up to three hours.

&htab;139.&htab;The Committee notes that the present complaint concerns a labour dispute referred to by the National Trade Union of Civil Aviation Flight Personnel concerning the hours of work of cabin personnel of the Portuguese airline, TAP.

&htab;140.&htab;According to the complainant trade union, the employer, TAP, a public undertaking placed under government supervision, infringed its right to conclude collective contracts by applying the Ministerial Order providing for a maximum flight duty time which is higher than that provided for in the enterprise-level agreement and the arbitration award. In addition, the undertaking imposed disciplinary penalties (even though the penalties were subsequently lifted) on ten members of the cabin crew who merely refused to work beyond the limit fixed by the arbitration award, during the flight TP 302 of 29 July 1987.

&htab;141.&htab;The Government, on the other hand, considers that, firstly, the above-mentioned Order which amended, inter alia, the "duration of flight duty and rest of crews of aircraft engaged in commercial and private air transportation", was adopted on the basis of a Legislative Decree after consultation of workers and employers under the terms of the Legislative Decree of 4 March 1985, itself adopted in accordance with national technical standards governing the operation of aircraft and with the recommendations of the International Civil Aviation Organisation.

&htab;142.&htab;Secondly, the case at issue referred to by the complainant trade union involves a totally exceptional and unforseeable situation. Thus, during flight TP 302 of 29 July 1987, a captain had to order continuation of a flight, in the event of unforeseeable reasons and force majeure (as permitted in section 8(2) of the regulations approved by Order No. 408 of 14 May 1987), since the Lisbon-Montreal-Toronto flight had arrived in Montreal two hours and 28 minutes late for unforeseen technical reasons, and since failure to continue the flight to Toronto would have caused serious prejudice to the passengers.

&htab;143.&htab;The Committee, for its part, gathers from the voluminous documentation supplied both by the complainant trade union and by the Government that the protocol of agreement signed by TAP and the SNPNAC on 28 August 1987 simultaneously lifted the disciplinary penalties, instituted an inquiry into the case which had given rise to the dispute, and called off the strike warning issued by the same complainant trade union.

&htab;144.&htab;Moreover, the documentation indicates that the complainant trade union lodged a complaint with the Public Prosecutor of Portugal in order to obtain a total clarification of the legal situation as regards the limits on flight duty time which should be observed by trade union members. Finally, the Government itself states that this is a matter for the Portuguese courts.

&htab;145.&htab;Having considered all of these elements, the Committee can only note that Order No. 408 of 14 May 1987 provides for maximum hours of work which are higher than those fixed by the arbitration award applicable to TAP personnel. Systematic application of this Order by TAP would therefore run counter to the arbitration award freely accepted by both parties, and would infringe the right to collective bargaining of the workers' organisations concerned.

&htab;146.&htab;However, the Committee must note that the Order provides for a continuation of flights beyond 15 hours only in the event of unforeseen reasons and force majeure . In the case in question, this possibility was only used on one occasion in unforeseen circumstances. In addition, the complainant trade union itself, in a spirit of conciliation, admitted that in really exceptional circumstances the limits on flight duty time may in fact be exceeded.

&htab;147.&htab;In these conditions, in view of the exceptional circumstances underlying the application of hours of work in excess of those provided for in the arbitration award, the Committee considers that the case does not call for further examination.

&htab;148.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

&htab;149.&htab;The complaint is contained in a communication from the National Federation of Driving Schools (FENAE) dated 6 February 1986. The Federation furnished further information and new allegations in communications dated 15 March, 31 October and 1 November 1986 and 21 July 1987. The Government replied in communications dated 29 May 1986 and 5 February, 14 July and 2 December 1987.

&htab;150.&htab;Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;151.&htab;The National Federation of Driving Schools (FENAE) alleges that the General Directorate of Traffic of the Ministry of the Interior has been seeking to promote the creation of a parallel employers' federation under the control of the Administration so as to split up driving school operators. The FENAE adds that the General Directorate of Traffic and the bodies coming under it have a hostile attitude and refuse to hold discussions and to collaborate on matters of mutual interest either with the FENAE or with its provincial affiliate associations, despite the fact that the Federation is the most representative organisation which has been negotiating collective agreements at the state level for the driving school sector.

&htab;152.&htab;As regards attempts to set up a parallel organisation, the FENAE states that the General Directorate of Traffic convened the provincial associations to a meeting held on 11 September 1985. According to the Federation, the meeting was held under such conditions that the representatives of its provincial associations had to withdraw and sign a document protesting at the manner in which the Director-General of Traffic had acted in failing to convene the Federation to the meeting, and in including on the agenda the subject "the problem of genuine discussion at the national level". Following the said meeting, the General Directorate of Traffic set up a management committee made up of public servants which convened a National Congress of Driving Instructors, which was held on 30 and 31 May 1986 (that is to say eight days after the Third National Congress of Driving Schools organised by the FENAE), with the aim of setting up an employers' organisation parallel to the Federation. The latter states that the subjects discussed at the Congress included "driving schools as enterprises; financial problems; and labour-management relations", that is to say matters pertaining specifically to management and labour. The FENAE adds that its affiliate associations were not invited, but that the members of these associations were invited individually. The latter withdrew in view of the attitude adopted by the General Director of Traffic during the preparations for the Congress. Those invited to the Congress included public servants and persons outside the sector.

&htab;153.&htab;The FENAE states, in its latest communications, that through the so-called follow-up committees to the First Congress of Driving Instructors, the traffic services are interfering in the activities of the driving schools to promote the creation of a joint organisation made up of representatives of employers and workers, as well as public servants, that will be called the Autonomous Federation of Driving Schools. According to the FENAE, in the Baleares province a management committee of the said Autonomous Federation of Driving Schools has been formed. The FENAE encloses a copy of the review "Trafico", published by the General Directorate of Traffic in January 1987, containing an article headed "Towards an Autonomous National Federation", from which the following is an extract:

&htab;Last Saturday, 20 December 1986, in the presence of a number of presidents of regional and provincial federations of driving school organisations, a management committee was set up to create a new association for members of this sector. So far this National Autonomous Federation of Driving Schools, as it is to be known, has set up its management committee to negotiate with the General Directorate of Traffic and identify the problems of driving instructors and their firms since "we do not consider the FENAE to be representative".

&htab;The management committee drew up a three-point document setting out its democratic constitution, the general problems facing driving schools and proposals for resolving them. At the same time this new National Autonomous Federation of Driving Schools aims, as one of its first actions, to recover the assets, or the part of the assets corresponding to the FENAE and former employers' organisations, from those regional and provincial organisations belonging to them.

&htab;154.&htab;The Government states that the organisation of the First National Congress of Driving Instructors by the General Directorate of Traffic comes fully within the legal competence of the said Directorate. This was a conference on driving instruction and not a congress of driving schools, firms or operators, and consequently it was open to everyone who was connected with or interested in the activity of driving instruction, provided they registered and paid their expenses themselves. Of the 1,623 participants, a group of between 150 and 200 was made up of public servants who were connected with driving and came from various ministries to serve in an advisory capacity. The purpose of the Congress was to deal with a number of problems concerning driving instruction and to adopt conclusions that could be taken into account if driving instruction were to be regulated. The statement by the FENAE that its associations were not invited (it must be emphasised that no provincial or national association was invited), but that their members were invited on an individual basis is proof that the Congress was open to everyone involved in the sector so as to have the largest possible number of participants.

&htab;155.&htab;The Government adds that it is wrong to maintain that the Congress was concerned mainly with labour matters. The principal subjects dealt with at the Congress, chosen freely by the management committee, were: "driving schools as teaching centres", "driving schools as enterprises - problems, financing and labour-management relations", and "legislation applicable to driving schools". It is obvious that labour-management questions and financial issues in the sector are closely related to the enterprise as a teaching centre.

&htab;156.&htab;The Government goes on to say that the committees established to follow up the conclusions of the Congress of Driving Instructors should be looked at from this point of view and are proof that the Congress was not organised in vain since as a result of it the Administration undertook to implement its recommendations and to look further into the subjects thought to require further study.

&htab;157.&htab;The Government recalls that it was decided to hold the Congress of Driving Instructors at a meeting which was held at the headquarters of the General Directorate of Traffic on 11 September 1985 between representatives of the said General Directorate and of associations of private driving schools. The Government has furnished a summary of the discussions at the meeting and of the agreements adopted, stating in particular the following:

&htab;"Before considering the agenda, note was taken of a communication to the General Directorate from the Executive Board of the National Federation of Driving Schools (FENAE) stating that it considered the holding of the Congress to be illegal and contrary to the Constitution. The FENAE maintained that it implied interference in the internal affairs of the Federation since the latter's affiliate associations were being invited without its knowledge and independently of it. &htab;Telegrams were read out that had been sent to the General Directorate by the Presidents of the Provincial Associations of Driving Schools of Cuidad Real, Granada, Guipúzcoa, Palencia, Segovia, Seville, Soria and Zamora, stating that they wished to be represented 'for all purposes' by the President of the National Federation of Driving Schools.

&htab;Since, despite this, the Presidents of the said provincial associations attended the meeting, they were asked to explain their position because, whilst on the one hand they had stated that they would be represented for all purposes by the President of the National Federation - who did not attend - on the other hand they themselves did attend, which was obviously contradictory.

&htab;The Director-General made the following points rebutting the written statement of the Executive Board of the National Federation of Driving Schools: that the General Directorate of Traffic could have direct relations with the provincial associations, which remain autonomous whether or not they are federated, that its representatives were free to remain or to leave, but that they should clarify their position and publicly resolve the confusing situation that had arisen.

&htab;After the representative of the Provincial Association of Avila, had spoken, these representatives decided of their own free will to leave the meeting.

&htab;Following speeches by the Director and the representatives of other associations, some of whom (Las Palmas and Zaragoza) asked for it to be placed on record that they considered that discussions should be held with the FENAE, the items on the agenda were discussed and the following summarised agreement was reached:

&htab; To hold a national congress of driving schools at which all the problems affecting the sector would be discussed. Prior to the national congress special days would be held at provincial or regional levels. For this purpose a management committee was established, made up, in addition to representatives of the General Directorate of Traffic, of representatives of the Association of Driving Schools of the Province of Madrid, the Association of Driving Schools of the Province of Jaén, the Union of Driving School Operators of Asturias, the Union of Directors and Operators of Driving Schools of the City and Province of Valencia, the Associations of Driving Instructors of León, Jaén and the National Co-ordinating Committee of the Associations of Driving Schools, as well as representatives of the UGT, USO and APTTAE and an independent member of the branch."

&htab;158.&htab;The Government, which recognises the difficulties of dialogue between the General Directorate of Traffic and the FENAE (though stating that it is not true that the traffic authorities refuse to deal with associations affiliated to the FENAE) and describes relations between the two as unfriendly, concludes by stating that it does not deny the representativity of the FENAE, that it is not true that the General Directorate of Traffic is interfering in the driving school sector by setting up a federation of driving schools dominated and controlled by the Administration and even less true that meetings are being held to this end. The Government supplies the text of a ruling by the Court of the Province of Madrid, dated 20 September 1986, rejecting an application by the FENAE for the suspension of the Congress organised by the General Directorate of Traffic on the grounds of alleged anti-union activities.

&htab;159.&htab;The Committee observes that the complainant organisation refers mainly to attempts by the Administration to set up an organisation of driving schools that would replace the National Federation of Driving Schools (a federation of employers' associations), in particular by organising a National Congress of Driving Instructors in May 1986 and establishing follow-up committees to this Congress. The Committee observes that the Government denies these allegations.

&htab;160.&htab;The Committee notes the Government's explanations concerning the nature, legal framework, functioning and purpose of the said Congress of Driving Instructors and its follow-up committees, and in particular the fact that no association was invited since it was a congress open to all involved in driving instruction who registered and met the expenses themselves. The Committee also observes that the Court of the Province of Madrid, in a ruling of 20 September 1986, rejected the application of the FENAE for the Congress to be suspended on account of alleged anti-union activities.

&htab;161.&htab;In view of the foregoing and of the fact that there was nothing to prevent participation by leaders of the FENAE or of their provincial associations in the Congress in question, the Committee considers that the complainant organisation has not proved that there was interference by the authorities with a view to setting up a new organisation.

&htab;162.&htab;Nevertheless the Committee regrets that at the meeting of 11 September 1985 - at which it was agreed to hold the Congress - the competent authorities invited, inter alia, national-level trade union organisations and provincial employers' associations affiliated to the FENAE, but not the FENAE itself, despite the fact that the Government has stated that it does not deny the Federation's representativity. In these circumstances, noting the difficulties as regards dialogue and the tension existing between the General Directorate of Traffic and the FENAE, the Committee emphasises the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organisations of the sector involved. The Committee expresses the hope that relations between the General Directorate of Traffic and the FENAE will become easier in the future and that a climate of collaboration and mutual trust will develop.

&htab;163.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee requests the Government to endeavour in the future to create conditions propitious to dialogue and consultation between the traffic authorities and the FENAE on matters of mutual interest.

&htab;164.&htab;The Union of Pilots of the Venezuelan International Aviation Corporation (OSPV) submitted a complaint of violations of freedom of association on 22 September 1986. Subsequently, on 16 January, 17 February and 21 May 1987, it provided additional information.

&htab;165.&htab;The Government sent information on the matter in letters dated 24 April, 6 May and 16 and 23 October 1987 and 11 February 1988.

&htab;166.&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;167.&htab;The OSPV states that on 16 July 1986, the Ministry of Labour, acting through a labour inspector, ordered the suspension of the members of the OSPV executive committee, who were also prevented from having access to the premises of the Venezuelan International Aviation Corporation (VIASA). This State Corporation, the complainant adds, employs 2,800 persons who are members of one or other of five unions, including the OSPV.

&htab;168.&htab;OSPV states that it is made up of 222 pilots and is affiliated to the Venezuelan Federation of Professional Air Pilots' Unions and to the Spanish-American Association of Pilots. It explains the facts as follows: VIASA had programmed flights for 9, 10 and 11 July 1986, but on the 9th the captain of one aircraft noted that his second-in-command did not hold a certificate of basic training in hangar technique (there is a statutory requirement that this must be obtained afresh every 12 months); two officers responsible for the supervision of the whole air fleet cancelled the flight with the agreement of the deputy chief pilot, who sent the crew members home because their flight was called off for technical reasons. The complainant explains that the same situation arose for the following flights, which were consequently cancelled by the employer.

&htab;169.&htab;OSPV continues as follows: on 10 and 11 July the situation remained unchanged, but on the 12th, captains of aircraft learned - on the strength of a telegram sent by the Ministry of Transport and Communications to the VIASA Director of Operations on the previous day - that they were relieved of any liability because, in the Ministry's view, failure to possess the certificate in question did not constitute violation of air safety standards. According to the complainant, the telegram had not been immediately sent on to the crews; the pilots, however, obeyed their orders as soon as these were received and - although they did not share the Ministry's view - operations were resumed.

&htab;170.&htab;OSPV explains further that, during the same period, VIASA asked the Ministry of Labour to suspend the members of the Union's executive committee and, on 16 July 1986, the said Ministry ordered their suspension without giving any justification. OSPV states that in fact VIASA had asked the labour inspector, at 12 noon on 11 July, to declare that the stoppage of its normal operations was unlawful and the inspector made this declaration at 3 p.m. on the same day. OSPV points out that it appealed against the two decisions on 17 July but the Ministry gave negative decisions. On 18 July 1986, OSPV informed the Ministry of Labour in writing that it was the Corporation VIASA which had cancelled the flights programmed for the following days. The complainant accordingly considers that the members of its executive committee were wrongfully suspended. It points out that the suspension affected their contractual and their union rights: they could not perform their professional functions as pilots or their union functions as laid down in the Union's regulations and in the collective agreement; discussions on renewal of the agreement were held up; the individuals concerned were obliged to hand over their employment cards and badges; they lost professional and technical skill by being prevented from flying and also incurred loss of earnings, etc.

&htab;171.&htab;In its replies dated 24 April and 6 May 1986, the Government first stresses the importance attached in Venezuelan legislation to the protection of trade union rights. It adds that the question of the suspension of several union officers of the VIASA Corporation was before the courts at the time of writing and that VIASA had also appealed to a higher judicial instance.

&htab;172.&htab;Going into greater detail, the Government explains that the procedure laid down in the Labour Code and regulations issued thereunder had been applied: VIASA had requested that the above-mentioned events be considered as constituting grounds for dismissal and the members of the Union's executive committee were therefore summoned in accordance with administrative procedure so as to be heard and to state their defence. They had been enabled to do this in the presence of the competent labour inspector, who had made the impugned decision. In accordance with law, the said decision put an end to the administrative procedure - in other words, the Ministry of Labour had nothing more to do with the matter, despite what the complainant might say on the point.

&htab;173.&htab;The Government states that the persons concerned were, on the other hand, able to appeal for annulment of the administrative decision made by the labour inspectorate by applying to the first instance of the Administrative Disputes Authority; they had done this and in a first decision dated 29 January 1987, the said Authority ruled in favour of the Ministry of Labour.

&htab;174.&htab;In a later communication dated 23 October 1987, the Government adds that the Administrative Disputes Authority subsequently took an interlocutory decision to terminate the dismissal proceedings and to order reinstatement of the persons affected thereby. It also states that, although the Disputes Authority had not given a final ruling on the matter, the VIASA Corporation decided to accept the interlocutory order and to reinstate the members of the OSPV executive committee; the committee members had accordingly been able to resume their work and exercise their trade union rights to the full. The Government points out that relations between the Corporation and the Union are now normal and that collective bargaining - particularly in respect of improvements in aircraft pilots' salaries and new clauses on protection of freedom of association - is currently under way. The Government hopes the negotiations will bear fruit in the near future. In its communication of 11 February 1988, the Government supplies the text of the ruling handed down by the Disputes Authority which orders the definitive reinstatement of the dismissed trade union leaders.

&htab;175.&htab;This case relates to an alleged act of anti-union discrimination against the members of the executive committee of a pilots' union (OSVP) as part of a labour dispute within the Venezuelan International Aviation Corporation. In the view of the complainant, the suspension of the said committee members was unlawful because the cessation of activity by the aircraft pilots, which was at the root of the dispute, was due to technical reasons and had in fact, been ordered by the employer Corporation itself. In the Government's view, on the other hand, the action taken by the labour inspector was justified by an unlawful stoppage for which the aircraft pilots were to blame.

&htab;176.&htab;The Committee recalls also that, as it has pointed out in previous cases, the dismissal or suspension of an employee, depriving him of his status as a trade union officer, is liable to affect the union's freedom of action and the worker's right to choose their representatives freely and may even encourage interference on the employer's part [See 147th Report, Case No. 677 (Sudan), para. 222.].

&htab;177.&htab;In the present case, the Committee notes that, according to the Government, the labour dispute at the root of the matter, which induced the VIASA Corporation to suspend the members of the OSPV's executive committee, is now in the course of being settled. It notes further that, as the result of a judicial decision, the trade union officers affected by anti-union discrimination have been reinstated in their jobs.

&htab;178.&htab;Accordingly, given the information now at its disposal, the Committee considers that there is no point in continuing examination of this case.

&htab;179.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee recalls the importance it attaches to the principle that a worker or a trade union officer should not suffer prejudice by reason of his legitimate exercise of trade union activities.

(b) The Committee notes that the suspended trade union officers have been reinstated in their jobs and considers that there is no point in continuing the examination of this case.

&htab;180.&htab;The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 25 February 1987. The ICFTU sent additional information in a letter dated 9 March 1987. The Government replied by letter of 3 December 1987.

&htab;181.&htab;The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;182.&htab;In its letters of 25 February and 9 March 1987 the International Confederation of Free Trade Unions (ICFTU) alleges that on 11 February l987 groups of armed persons linked with the Government attacked the headquarters of the Sacks and Ropes Factory Union during a meeting being held by the Union to elect new officers; it also alleges that the Union's leaders were dismissed from their employment and threatened with death.

&htab;183.&htab;The ICFTU adds that on 2 March 1987, while collective bargaining was in process, police forces violently displaced striking workers who belonged to the Union of Employees of the "Santo Domingo South" Hotel; that 270 workers were arbitrarily dismissed as well as the General Secretary and the Organising Secretary of the Union; and that a member of the Committee of the "Hotel Hispaniola" Employees' Union was also dismissed, merely because he had expressed his solidarity with the strikers.

&htab;184.&htab;In its letter of 3 December 1987, the Government states that the Office of the Secretary of State for Labour had mediated in the dispute which had arisen in the Sacks and Rope Factory and that the undertaking - which had not been able to make the payments due from it because of the economic situation - reinstated the dismissed workers in accordance with the suggestion made by the Office of the Secretary of State.

&htab;185.&htab;As regards the collective dispute in the "Santo Domingo South" and "Hispaniola" Hotels, the Government appends a letter from the unions of employees of the two hotels, addressed to the Secretary of State for Labour and thanking the authorities for the mediation which had led to full settlement of the dispute (reinstatement of the dismissed employees except for two who had been fired for unsatisfactory performance of their work and who had in any case the right to appeal to the courts). In the same letter the unions stressed their satisfaction with the compromise agreement reached with the two hotels.

&htab;186.&htab;The Committee observes that the present case relates principally to the dismissal of workers and trade union officers in connection with collective disputes. It notes with interest that, following mediation by the Office of the Secretary of State for Labour, reinstatement of the dismissed workers was secured and the various disputes accordingly settled. However, the Committee wishes to emphasise that on previous occasions, when considering complaints of anti-union discrimination in the Dominican Republic, it has pointed out to the Government that legislation permitting an employer to dismiss a worker on condition that he pays the statutory compensation laid down for cases of unjustified dismissal, when the real reason for the dismissal is the worker's trade union membership or his trade union activity does not provide sufficient protection against acts of anti-union discrimination within the meaning of Convention No. 98. The Committee would again recall this principle, and draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;187.&htab;Lastly, the Committee observes that the Government has not replied specifically to the allegations regarding the violent disruption of the meeting of the Sacks and Ropes Factory Union and the similar action taken against the striking members of the union of employees of the "San Domingo South" Hotel. As the disputes in question have been settled, the Committee would merely refer to the principle laid down in Article 3 of Convention No. 87, according to which the public authorities must refrain from any interference which would restrict the right of workers' organisations to organise their activities or impede the lawful exercise of that right.

&htab;188.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (a) Since the existing legislation does not provide sufficient protection against dismissals based on trade union membership or activity, the Committee requests the Government to take measures so as to ensure that the legislation guarantees such protection. It draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

(b) The Committee draws the Government's attention to the principle contained in Article 3 of Convention No. 87, according to which the public authorities should refrain from any interference which would restrict the right of workers' organisations to organise their activities.

&htab;189.&htab;The Committee on Freedom of Association examined this case at its November 1987 meeting and presented an interim report to the Governing Body [see 253rd Report, paragraphs 343 to 356], which was approved at its 238th Session (November 1987).

&htab;190.&htab;The Government sent additional information on the outstanding allegations in a communication dated 17 December 1987.

&htab;191.&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;192.&htab;After the last examination of the case one allegation remained outstanding: the arrest of Julio Chang, Secretary-General of the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL), and other trade unionists, on the grounds of having called, together with other trade union confederations, a nation-wide strike on 25 March 1987 in protest against the excessive increase in fuel prices and transport costs.

&htab;193.&htab;At its November 1987 meeting, the Governing Body approved the following recommendation: &htab;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 legal proceedings have been instigated against them.

&htab;194.&htab;In its communication dated 17 December 1987, the Government sends additional comments on this case, in which it informs the Committee of the arrest of trade union officer Julio Chang and other trade unionists, who were sentenced to two days' imprisonment and who were released as soon as they had served the sentence handed down by the trial judge.

&htab;195.&htab;The Government encloses with its communication a copy of the judgement containing the verdict of guilty dated 25 March 1987, which states that, according to publications in the various mass media during the period 23 to 25 March, Julio Chang Crespo, César Augusto Valverde Flores, César Nevil Quintero Aguirre, Armilo Quiñónez Sánchez, Efraín Robelly Cruz and Jorge Machare Sánchez publicly declared that the Government of the Republic presided over by Engineer León Febres-Cordero is an enemy of the workers and that the natural disaster which occurred in the north-east of the country was used as a pretext to enact economic measures directed against the people. The judgement states further that, considering that these assertions were rejected by editorials in the daily newspapers Hoy , Extra and Universo , and in view of the facts outlined above, it deems that the aforementioned persons "disseminated false information and rumours concerning the order currently prevailing in Ecuadorian society".

&htab;196.&htab;The judgement which the Government encloses with its communication states further that "to declare that the President of the Republic has used the natural disaster as a pretext offends the national honour, all the more so since as a result of the natural disaster, which has inflicted damage on certain sectors of the population, they have received international assistance and attention". In view of these factors, the judgement sentenced Julio Chang Crespo, César Augusto Valverde Flores, César Nevil Quintero Aguirre, Armilo Quiñónez Sánchez, Efraín Robelly Cruz and Jorge Machare Sánchez to two days' imprisonment in accordance with section 606(13) of the Penal Code, to be served in the Social Rehabilitation Centre.

&htab;197.&htab;The Committee notes the detailed information provided by the Government concerning this case, in particular that Julio Chang Crespo, the trade union officer who is the subject of this complaint, and other trade unionists have been released after serving a sentence of two days' imprisonment handed down by the trial judge for disseminating false information and rumours concerning the order currently prevailing in Ecuadorian society and for offending national honour. The sentence accords with the provisions of section 606(13) of the Ecuadorian Penal Code.

&htab;198.&htab;The Committee would nevertheless recall the principle that the full exercise of trade union rights calls for a free flow of information, opinions and ideas and to this end workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. However, the Committee recalls in general terms that in expressing their opinions trade union organisations should respect the limits of propriety and refrain from the use of insulting language. [See 217th Report, Case No. 963 (Grenada), para. 538 and 244th Report, Case No. 1309 (Chile), para. 336(f).]

&htab;199.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee notes that Julio Chang Crespo and the other trade unionists who are the subject of this complaint have been released after being sentenced to two days' imprisonment. The Committee further considers that the matter does not call for further examination.

&htab;200.&htab;By a communication dated 10 July 1987, the Danish Seamen's Union presented a complaint of violations of collective bargaining rights against the Government of Denmark. The Government communicated its reply in a letter dated 2 November 1987.

&htab;201.&htab;Denmark 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;202.&htab;In its communication of 10 July 1987, the Danish Seamen's Union alleges that the Public Conciliator, through his Draft Settlement dated 11 February 1987 (of which a copy is supplied) intervened to impose on and renew the collective agreements between organisations and individual undertakings grouped together under the Danish Employers' Confederation on the one hand, and the Seamen's Union on the other hand, contrary to Conventions Nos. 87 and 98.

&htab;203.&htab;The complainant union explains that the Public Conciliator is the head of the three-person Conciliation Board, a government institution, and is appointed by the Minister of Labour along with the two other conciliators, for the country as a whole, for three years at a time in pursuance of the Conciliation in Industrial Disputes Act of 1934, as amended. He has the discretion, under section 12 of this Act, to join together "as an entity" various draft agreements or settlements. This "entity" would then be put to the combined union membership of the various trades involved and the employers for a vote as to its acceptance.

&htab;204.&htab;The complainant (which is not affiliated to the Danish Federation of Trade Unions, LO) explains that it commenced negotiations with its bargaining counterpart, the Danish Shipowners' Association (which is affiliated to the Danish Employers' Confederation), in January 1987 for the collective agreement that was due to expire on 1 March 1987. At the same time, for the metal sector, after negotiations, minutes of the conclusion of their collective bargaining were signed (on 15 and 16 January 1987) by the Employers' Association of the Metalworking Trades (affiliated to the Danish Employers' Confederation) and the Danish Metalworkers' Union (affiliated to the LO). From the minutes it appears that no further claims were outstanding for the metal sector, and the Metalworkers' Union recommended that its members return an affirmative vote. Likewise, between 16 January and 11 February 1987, similar minutes were signed for the private labour market sector by the Danish Employers' Federation and the LO.

&htab;205.&htab;The complainant states that in early February 1987 it was summoned by the Public Conciliator under section 3(2) of the Conciliation in Industrial Disputes Act to participate in negotiations concerning the union's agreement with the Shipowners' Association. On 11 February the Public Conciliator, in pursuance of section 4(3) of that Act, presented a Draft Settlement containing the minutes of 15 and 16 January concerning the metal sector and similar minutes signed between organisations under the Danish Employers' Confederation and the LO. In spite of the Seamen's Union's objections, the Public Conciliator also determined that this 11 February Draft Settlement was to be regarded "as an entity" with the negotiated agreements reached for the rest of the private sector.

&htab;206.&htab;The complainant emphasises that this linking together into one Draft Settlement meant that the Seamen's Union had in reality no influence on the adoption or rejection of the agreement because the LO has more than 700,000 voting members, whereas the Seamen's Union musters some 5,000 seamen, of whom - for technical reasons - only 1,000 are regarded as voting members. The overall Draft Settlement was adopted by some 170,000 votes for, with some 150,000 against. Amongst the members of the Seamen's Union itself the draft was rejected by 982 votes against 6.

&htab;207.&htab;According to the Seamen's Union, it submitted the Public Conciliator's Draft Settlement to the Ombudsman of the Danish Parliament, who announced - on 19 February 1987 - that reasons of principle prevented him from voicing an opinion on the provisions of the Conciliation in Industrial Disputes Act to the extent that such provisions had been brought before the Industrial Court.

&htab;208.&htab;The Seamen's Union also brought an action against the Public Conciliator in the Industrial Court, whose judgement of 9 April 1987 held that the Public Conciliator's presentation of the Draft Settlement was consistent with the provisions of the Conciliation in Industrial Disputes Act.

&htab;209.&htab;The complainant points out that, although the Danish Metalworkers' Union and other workers' organisations have not presented a complaint about the treatment of their negotiated agreements by the Public Conciliator, in its opinion, he had no proper cause to intervene with Draft Settlements for these organisations because agreement had already been reached voluntarily between the parties.

&htab;210.&htab;Lastly, the complainant stresses that the Public Conciliator had no reason whatsoever for deciding that Draft Settlements for organisations under the Danish Employers' Confederation and the LO (where agreement had in any case already been reached) were to be regarded "as an entity" with the Draft Settlement for the Seamen's Union/Danish Shipowners' Association. It points out that at no time was it substantiated that government intervention was necessary. In addition, it considers that the Draft Settlement from the Public Conciliator, which lays down agreements of four years' duration - whereas two-year agreements are customary in Denmark - has by far exceeded the reasonable period in which renewals of agreements might otherwise be imposed on trade unions.

&htab;211.&htab;In conclusion, the complainant alleges that this government intervention in effect deprived the Seamen's Union not only of the possibility of freely negotiating the renewal of its agreement (including possible rejection of the proposal for renewal and, as a last resort, calling and implementing a strike with a view to obtaining a better negotiation result), but also of any timely strike action. It states that the Public Conciliator intervened in the collective bargaining - by presenting an overall Draft Settlement 18 days prior to 1 March 1987, i.e. the date of notice for the agreement between the Shipowners' Association and the Seamen's Union, when no strikes or lock-outs had been called - at a time when it was quite unnecessary. In this connection, the Union points out that - notwithstanding any notice of termination - collective agreements continue to run until a strike or lock-out has been called, the earliest time for which is 14 days after such notice has been given.

&htab;212.&htab;In its communication of 2 November 1987, the Government explains the homogeneous development of the whole organised labour market in Denmark as a result of the renegotiation cycle of collective agreements in the spring of every second year, usually as from 1 March or 1 April (depending on the sector involved). It states that one of the advantages of this system is that it is easier for undertakings to plan production and work because major differences from one occupational field to another are avoided. In order to obtain such parallel results in the labour market, the parties traditionally try to co-ordinate the renewal of collective agreements renewable at 1 March and these new agreements serve as the model for the agreements due for renewal on 1 April.

&htab;213.&htab;The Government stresses that the Public Conciliation Board was set up to assist the parties in connection with the renewal of collective agreements, and that the only function of the Public Conciliator is to contribute to the conclusion of agreements between the parties; in some cases this is ensured by a Draft Settlement proposed by him which is then subjected to a ballot among both the workers and employers concerned. According to the Government, in his activities the Public Conciliator cannot be bound by government instructions or political authorities.

&htab;214.&htab;According to the Government, the fact that virtually all collective agreements are renegotiated at the same time means that a global solution should be found in connection with the collective bargaining situation. Otherwise, there would be a risk that where agreement has been reached on the renewal of collective agreements in nearly all fields of the labour market, but where disagreement concerning renewals persists in a few minor sectors, there could be industrial disputes and notices of sympathetic action across the labour market, even in those sectors where agreement had been reached. In order to prevent such a situation, states the Government, the Conciliation Act contains the so-called "linking" clause. This means that the Public Conciliator may decide that a Draft Settlement shall relate to several collective agreements, which are then subjected to a ballot as a whole. According to the Government, such Draft Settlements covering a number of collective agreements are quite common in Denmark, for example, the 1 March renewal concluded between organisations which are members of the LO or the Danish Employers' Confederation, the collective agreements in agriculture, and the collective agreements covering academic staff in public employment.

&htab;215.&htab;The Government states that in the spring of 1987, the employers and workers in the metal industry had, at a comparatively early stage, reached agreement concerning the basis for renewal of their collective agreement, and subsequently other parties involved in negotiations reached agreement for the renewal of their respective sectoral agreements on terms more or less the same as those agreed upon in the metal industry. One common feature of all these renewal negotiations was that the parties' agreements should form part of a Draft Settlement which the parties expected the Public Conciliator to propose in order to solve the problems in those sectors where the collective agreements were renewable as of 1 March. The purpose of this understanding was to obtain a general solution to the bargaining situation, in particular to avoid a situation where the results obtained in one sector might be considerably poorer than those obtained in another.

&htab;216.&htab;According to the Government, when the Public Conciliator put forward his Draft Settlement on 11 February 1987 he had, as understood by the parties to the Settlement, included in it those agreements which had been concluded without the assistance of the Public Conciliator. It points out that the agreements renewed with the assistance of the Public Conciliator contained terms corresponding to those obtained without the assistance of the Public Conciliator. This led to a challenge of the contents of the Draft Settlement before the Industrial Court on the ground that such a Draft Settlement should not have included the terms achieved without the assistance of the Public Conciliator. The Government states, however, that on 9 April 1987 the Industrial Court held [a copy of the judgement is supplied] that the Public Conciliator had not overstepped his powers, and emphasised that the negotiation results obtained without the assistance of the Public Conciliator "had not manifested themselves in agreements concluded", i.e. the terms written into the minutes would only lead to collective agreements if similar results were to arise from the negotiations being carried on in the rest of the labour market. If this should not happen - against the expectations - work stoppages could take place in those sectors, and the Government points out that notices of industrial disputes were in fact exchanged by the parties in these fields even after the terms in question had been voluntarily agreed upon. The Industrial Court consequently found that the Public Conciliator was entitled to include these negotiation results in his 11 February Draft Settlement in an attempt to obtain a global solution for all the sectors in question.

&htab;217.&htab;In conclusion, the Government emphasises that the rules laid down in the Conciliation in Industrial Disputes Act - including the linking provision which reflects the solidarity principle within the trade union movement - are based on the wishes and proposals of the social partners - a tradition which dates back to the start of the century. The Act thus safeguards the interests of the social partners and not the interests of the State. The linking provision, states the Government, has become absolutely necessary for the exercise of free collective bargaining in a manner acceptable to the majority.

&htab;218.&htab;The Committee notes that the facts of this case are not in dispute: both the complainant and the Government explain that on 11 February 1987 the Public Conciliator exercised his discretion to propose a Draft Settlement to renew for four years all the agreements due to expire on 1 March 1987 in the private sector fields under the Danish Employers' Confederation and the Danish Federation of Trade Unions, which specifically include those agreements made between the Employers' Confederation and the Danish Seamen's Union.

&htab;219.&htab;Both sides likewise agree that on 9 April 1987 the Industrial Court held that the Public Conciliator had not overstepped his power by including in that Draft Settlement certain terms which had been freely negotiated by other parties.

&htab;220.&htab;What the complainant criticises is that this government intervention in the free collective bargaining that was going on for the seamen's sector was not necessary and that this imposition of an agreement reached voluntarily in the metal industry on the entire private sector is excessive, and too long.

&htab;221.&htab;The Government considers, on the other hand, that the linking of a Draft Settlement for the seamen's sector to agreements for the private sector as a whole (through the "linking" provision in section 12 of the Conciliation in Industrial Disputes Act) was necessary as part of the global approach to collective bargaining in Denmark. It cites examples to show that this linking of several sectoral agreements in one settlement is not unusual. The Government also points out that such coverage usually works to the advantage of all the workers' organisations involved by raising poor bargaining results to a higher level. In fact, the Government emphasises that, in the present case, the other private sector unions not only expected, but expressly included in the minutes summarising their negotiations (in particular in the metal sector) that their results be incorporated into the Draft Settlement which the Public Conciliator was expected to present, on threat of industrial action.

&htab;222.&htab;The Committee observes that this is the second occasion in recent years that it has been called on to examine the Danish Government's intervention in the private sector collective bargaining process. Although the legislation at issue in the earlier case [see 243rd Report, Case No. 1338, paras. 209 to 247, approved by the Governing Body in March 1986, followed up in the 1987 Observation on Denmark's observance of Convention No. 98 made by the Committee of Experts on the Application of Conventions and Recommendations] is not that called into question here, the Committee notes that it is bound to refer the Government to the same fundamental principles, namely that a basic aspect of freedom of association is the right of workers' organisations to negotiate wages and conditions of employment freely with employers and their organisations, and that any restriction on the free fixing of wage rates should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period; such restrictions should be accompanied by adequate safeguards to protect the living standards of the workers.

&htab;223.&htab;The Committee must therefore decide whether the Government's intervention of 11 February 1987 was justified in the light of these four criteria. First, the Committee observes that the method used was not, on the facts, exceptional. The Public Conciliator's de officio discretion under the Conciliation in Industrial Disputes Act to summon the parties already engaged in bargaining to negotiations and his discretion to link various sectoral agreements in one Draft Settlement document have existed for many years and have, according to the Government, been used often. The relevant provisions of the Act in question read as follows:

&htab;Section 3

&htab;(1)&htab;When there is reason to fear a stoppage of work or one has already occurred, and when the conciliator concerned with the matter attaches social importance to the effects and scale of the dispute, he may, if the negotiations between the parties have been carried out under the provisions agreed between them and have been declared by one of the sides as concluded without result, either on his own initiative or at the request of one of the parties, call on the disputing parties to negotiate. The conciliator may also on his own initiative or at the request of one of the parties at an earlier stage provide his assistance for the establishment of fresh agreements, even though the negotiations conducted by the parties have not been declared concluded without result. [...]

&htab;(2)&htab;The parties shall be bound to comply with a summons from the conciliator. [...]

&htab;Section 12

&htab;(1)&htab;The conciliator is empowered to decide in Draft Settlements providing for a general solution of a conflict submitted by him that these Draft Settlements shall be considered in part or in full as an entity, regardless of how the trades involved in the conflict are organised (as independent local unions, national unions or employer organisations, or grouped as members of an amalgamation of local unions, national unions or employer organisations). In any such linking of Draft Settlements covering several trades, however, organisations consisting of supervisors, etc., shall not be included. [...] &htab;(3)&htab;In the event that the Conciliator shall have decided that several Draft Settlements shall be regarded as an entity, the decision whether the Draft Settlements so linked have been adopted or rejected by the relevant organisations shall be made by comparing the results of the various trades included.

&htab;224.&htab;Secondly, the Committee notes that the proposal of the Draft Settlement on 11 February was presented when, as the complainant points out, the time-limits for the calling of industrial action had not been reached. The Committee particularly notes in this connection that neither the Government nor the complainant supply information as to whether the seamen's bargaining was blocked or having difficulties. The Public Conciliator's imposition of the Draft Settlement at that time on the sector concerned was, therefore, in the Committee's opinion, premature.

&htab;225.&htab;Thirdly, the Committee observes that the legislation does contain certain protective clauses, since a linked Draft Settlement must be put to a vote of the parties concerned. However, The Committee would stress in this connection that the Seamen's Union itself voted overwhelmingly against (982 votes against, 6 for) the Draft Settlement. The Committee would therefore recall, as it has in previous cases, that the extension of an agreement to an entire sector of activity contrary to the views of the organisation representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organisation and that this system makes it possible to extend agreements containing provisions which might result in a worsening of conditions of work of the category of workers concerned. [See, inter alia, 217th Report, Case No. 1087 (Portugal), para. 223, and 250th Report, Case No. 1364 (France), para. 136.]

&htab;226.&htab;Lastly, the Committee observes that no justification has been put forward by the Government to explain why the Draft Settlement of 11 February 1987 renewed the terms and conditions of employment for the private sector as a whole for four years, when the usual period covered by collective agreements was two years. In the Committee's opinion, the imposition of such a long time before negotiations can recommence exceeds the reasonable period referred to in the above-mentioned principle on collective bargaining. This aspect of the present case particularly disturbs the Committee since it notes that the other recent case concerning Denmark (referred to earlier) criticised a March 1985 Danish Act on the renewal and extension of collective agreements which rendered impossible collective bargaining for a two-year period. The Committee recognises, however, that the Draft Settlement covering four years was approved by the majority in the private sector by 170,000 votes for, with 150,000 votes against.

&htab;227.&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 de officio intervention by the Public Conciliator to impose a Draft Settlement on the entire private sector, when one category in that sector was proceeding with bargaining towards its own agreement, infringed the principle of free collective bargaining with a view to the regulation of terms and conditions of employment by means of collective agreements, contained in Article 4 of Convention No. 98.

(b) The Committee considers that this renewal of collective agreement for a four-year period not only goes beyond a reasonable period, but also runs counter to the traditions of collective bargaining in Denmark which have usually led to two-yearly agreements.

(c) The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations in the context of Convention No. 98, ratified by Denmark.

&htab;228.&htab;The complaint is contained in a communication of the World Confederation of Organisations of the Teaching Profession (WCOTP) dated 15 October 1987. The WCOTP sent further information in a communication dated 3 November 1987. The Government sent its observations in a communication dated 25 January 1988.

&htab;229.&htab;Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;230.&htab;The WCOTP alleges in its communication of 15 October 1987 that 50 lecturers have been dismissed from the University of Santa Ursula in Rio de Janeiro. While some of these lecturers were allegedly dismissed for administrative reasons, in other cases the dismissals were quite obviously on political (trade union) grounds, since they concerned lecturers who were organising a strike. One of the persons dismissed was the first Vice-President of the National Association of Higher Education Teachers (ANDES), Professor Sydney Solis, head of the local branch of ANDES at the University. He was subsequently reinstated by decision of a local court which ruled that his dismissal was an infringement of the trade union legislation.

&htab;231.&htab;In its communication of 3 November 1987, the WCOTP cites the following lecturers as having been dismissed on political grounds: Francisco Caminha, Teresa Martins, Ernesto Paganelli, Gil Goes, Fabio Lemos, Jandira Barreto, Ari Barreto, Mario Rocha and Luis Edmundo (reinstated by order of a local court).

&htab;232.&htab;The Government states in its communication of 25 January 1988 that, at the request of the trade union operating in the University of Santa Ursula, a round table was held on 6 June 1987 at which the trade union protested against the non-payment of certain wage benefits provided for in the collective agreement applying to the University. This was confirmed by the University itself, which stated that its financial situation was such that it was quite incapable of meeting the said payments but undertook to look into the demands of the professional category concerned. Although the University is still experiencing financial difficulties, the payment of salaries including increments is currently up to date, though the lecturers' pay is still slightly in arrears.

&htab;233.&htab;The Government adds that the dismissals were the outcome of this situation and affected about 50 auxiliary members of the administrative staff. The Government notes further that since June 1987 the Regional Labour Delegation has not received any request to take action and that a permanent dialogue continues to exist between the trade union and the University.

&htab;234.&htab;The Committee notes that the versions of the alleged dismissals given by the complainant and by the Government differ. The complainant organisation maintains that ten of the lecturers at the University of Santa Ursula were dismissed not for administrative reasons, as claimed, but on politico-trade union grounds, and specifically because they were organising a strike; two of them were subsequently reinstated. According to the Government, the dismissals, which affected some 50 people, were the result of the University's financial difficulties.

&htab;235.&htab;Given the differing versions of the complainant and of the Government, the Committee wishes to recall the principle laid down in the Workers' Representatives Recommendation, 1971 (No. 143), regarding the protection of workers' representatives and the facilities to be afforded to them, namely that the specific protective measures might include "recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce". In this connection, the Committee observes that the only dismissed lecturer whom the complainant specifically describes as a trade union leader (Sydney Solis) was reinstated by court decision.

&htab;236.&htab;In these circumstances, and in the absence of any more detailed information regarding either the complainant's allegation or the Government's response, the Committee can only express the wish that the continuing dialogue between the ANDES trade union and the University of Santa Ursula will lead to the reinstatement of the workers dismissed for their trade union activities.

&htab;237.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee requests the Government to take steps so that the continuing dialogue between the ANDES trade union and the University of Santa Ursula will lead to the reinstatement of the workers dismissed for their trade union activities.

&htab;238.&htab;The Committee on Freedom of Association last examined this case at its meeting of November 1987 [see 253rd Report of the Committee on Freedom of Association, paras. 328 to 342, approved by the Governing Body at its 238th Session (November 1987).]. Since then, the Government has sent new observations in communications dated 4, 9 and 16 December 1987 and 21 and 26 January 1988.

&htab;239.&htab;Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;240.&htab;This case concerns the death or disappearance of numerous trade unionists. At its meeting of November 1987, the Committee deeply deplored the death or disappearance of the trade unionists referred to in the complaints and requested the Government to keep it informed of any developments in the judicial investigations, particularly those relating to the deaths of trade unionists Carlos Betancourt Bedoya, Bernardino García, Jairo Blandón, Jesús Francisco Guzmán, Fernando Bahamón Molina, Euclides Garzón and Narciso Mosquera. The Committee hoped to receive the information which the Government stated it would send regarding the death of trade unionists Esteban Hernández and Raúl Higuita and the death threats allegedly received by trade unionists Fernando Pérez and Asdrúbal Jiménez Vaca. The Committee also noted the information provided by the Government to the effect that the investigations into the disappearance of trade unionists Gildardo Ortiz Cardozo and Gentil Plazas had been temporarily closed with a view to gathering evidence.

&htab;241.&htab;In its communication dated 4 December 1987, the Government states that the Ministry of Labour and Social Security has intensified its labour activities in view of the disruption of public order occurring in the Uraba region. In particular, on 10 September 1987, a standing committee consisting of representatives of the political parties, the trade unions, the church, and civic and government bodies was set up with the aim of carrying out a permanent assessment of the social situation in order to achieve complete normalisation in the region. The basic purpose of this committee is to analyse the situation and draw up measures to guarantee peaceful coexistence. There are also plans to set up a special labour office with headquarters in Apartadó, to start work in January 1988, in order to reinforce the activities of the Ministry in the area; in addition, in accordance with the powers conferred by Act No. 30 of 1987, labour circuit courts will be set up, to begin working in January 1988.

&htab;242.&htab;The Government states further in its communication that the deaths which occurred in this area are being investigated in full independence by the judges of the Republic, and that the Ministry of Labour therefore has no access to the investigation files. Lastly, the Government states once again that it will continue to send information as soon as it is received and that it will co-operate fully in elucidating the events which occurred in this region, in which, affirms the Government, the public order has been disrupted, and the Government therefore considers that it is not a specific labour situation such as would concern the Committee on Freedom of Association.

&htab;243.&htab;In its communication dated 9 December 1987, the Government provides the following information: as regards the death of Francisco Esteban Hernández Doria, the 16th judge of the Criminal Court of Apartadó (Antioquia) stated that the death of the trade unionist Hernández Doria occurred on the morning of 4 July 1987 and not 1 July or 1 April, and that the investigation No. 414, was being conducted by his office. The summary of the investigation is now being examined by the Departmental Police Inspectorate of Riogrande with a view to identifying the guilty party or parties.

&htab;244.&htab;As regards the death of Narciso Mosquera, the 13th judge of the Criminal Court of Medellín (Antioquia) stated that his office is carrying out the preliminary investigations into this death, but has not yet been able to identify the guilty party or parties, although the investigation is proceeding normally.

&htab;245.&htab;As regards the death threats allegedly made against Fernando Pérez and Asdrúbal Jiménez Vaca, the Government observes that the latter have brought no formal charges concerning the alleged threats; this was confirmed by the Commander of the Tenth Brigade of the army, which has its headquarters in Corepa (Antioquia). The Government adds that the trade union organisations make rash accusations based on hypothetical events, without availing themselves of the procedures granted by law for these purposes.

&htab;246.&htab;In its communication of 16 December 1987, the Government states that, as regards the deaths of Francisco Guzmán, Bernardino García and Jairo Blandón, the municipal Criminal Judge of Piedecuesta has begun the preliminary investigations in her inquiry into the identity of those responsible for the deaths without there being any positive identification to date; the Judicial Police will, however, continue their inquiries and any progress will be communicated to the ILO.

&htab;247.&htab;In its communication of 21 January 1988, the Government states that after many inquiries Mr. Luis Angel Parra Medina has been charged with the murder of the trade unionist Fernando Bahamón Molina. It supplies a copy of the official letter No. 002366 of 30 October 1987, signed by the Regional Prosecutor of Caquetá which indicates the developments in the inquiries which resulted in the authorities identifying the author of the crime.

&htab;248.&htab;In its communication of 26 January 1988, the Government states that the 14th Criminal Investigating Judge of Barrancabormeja (Santander) is continuing the investigations into the death, on 15 July 1987, of Euclides Garzón, but it has not been possible to date, to identify the guilty parties. The Government adds that, as regards the alleged death of Raúl Higuita, the 47th Criminal Investigating Judge of Apartadó stated that Mr. Higuita is not dead and is working on the "El Chispero" farm according to José Oliverio Molina, Secretary of SINTRABANANO; last year he was simply suffering a few wounds, which is why he was cited before the Courts' Offices with a request for more information. According to the Government, there is no basis for this part of the complaint, since Mr. Higuita has not lost his life and the wounds from which he was suffering are being investigated by the criminal courts. Finally, the Government states that, in its analysis of the facts, it is indispensable for the Committee to take account of the fact that the victims, their families and the organisations to which they belong often do not co-operate with the authorities and this greatly hampers the administration of final justice.

&htab;249.&htab;The Committee wishes to express once again its profound concern at the large number of trade unionists who have been killed or have disappeared in the Uraba region. The Committee wishes to recall once more that a climate of violence leading to the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights; such acts warrant strict measures by the authorities.

&htab;250.&htab;In this case, the Committee notes the efforts undertaken by the Government to seek solutions to the situation affecting the region. The Committee observes in particular that, according to the new information provided by the Government, judicial investigations are being carried out into the deaths of Francisco Esteban Hernández and Narciso Mosquera. In addition, it takes due note of the fact that the trade unionist Raúl Higuita is alive, but has been wounded, a fact which is being looked into by the judicial authorities.

&htab;251.&htab;The Committee takes note of the information supplied by the Government on the judicial inquiries being pursued in an effort to identify those responsible for the death of the trade unionists Francisco Guzmán, Bernardino García and Jairo Blandón which for the moment have not led to any positive identification. The Committee also notes that, according to information supplied by the Government, Mr. Luis Angel Perra Medina has been charged for the murder of the trade unionist Fernando Bahamón Molina.

&htab;252.&htab;At the same time, the Committee notes the information sent by the Government to the effect that the trade unionists Fernando Pérez and Asdrúbal Jiménez Vaca did not bring formal charges before the ordinary courts for the death threats which they allegedly received. In this respect, the Committee wishes to recall in general terms that trade union rights can only be exercised in an atmosphere which is free of violence, coercion or threats of any kind against trade unionists and that it is for the Government to guarantee respect of this principle.

&htab;253.&htab;As regards the judicial investigations into the deaths of the trade unionists Carlos Betancourt Bedoya, Euclides Garzón and Narciso Mosquera and the disappearance of Gildardo Ortiz Cardozo and Gentil Plazas, the Committee requests the Government to keep it informed of developments in all of the judicial proceedings relating to the death or disappearance of trade unionists referred to in this complaint and once again expresses the hope that it will be possible, in the near future, to identify and punish the guilty parties.

&htab;254.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;The Committee deeply deplores the death or disappearance of a large number of trade unionists and recalls that a climate of violence leading to the murder or disappearance of trade unionists warrants severe measures by the authorities in order to identify and punish the guilty parties. The Committee requests the Government to keep it informed of developments in the current judicial investigations.

&htab;255.&htab;In communications dated 28 May, 16 and 30 June 1987, the Customs Officers Association of Australia (COAA) presented allegations of violations of trade union rights in Australia. The COAA supplied further information in support of its complaint on 27 July and 30 October 1987. The Government supplied its observations in a communication dated 25 January 1988.

&htab;256.&htab;Australia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

&htab;257.&htab;In its communication of 28 May 1987, the COAA explains that on 19 December 1986 the Conciliation and Arbitration Commission refused to allow an amendment to the COAA's registration under the Conciliation and Arbitration Act, 1904, so as to enable it to continue to represent customs officers. The Commission recommended that the customs officers join the Administrative and Clerical Officers Association (ACOA).

&htab;258.&htab;The complainant claims to represent 1,350 workers, being one-third of Australia's customs officers and half of those who have chosen to be members of a workers' organisation. It points out that it has not proceeded with an appeal to the High Court against the Commission's decision because the ruling was taken in virtue of the Commission's discretionary power under the Act and because the lack of domestic law specifically relating to ILO Conventions Nos. 87 and 98 rules out a higher review of the law. In any case, states the COAA, the employer (the Australian Customs Service (ACS)) continued to recognise it as representative of customs officers, as it had done since the COAA was founded in 1914.

&htab;259.&htab;However, according to the COAA, on 25 May 1987 the Comptroller General of Australian Customs, the head of the ACS, advised it and all staff that, in view of the December 1986 decision, it would henceforth: terminate the current consultative arrangements with the COAA on industrial matters; terminate privileges of workplace facilities for COAA officials (including time off for meetings, membership and recruitment activities, distribution of literature, use of telephones, photocopying and typing resources, etc.); refuse entry to COAA officials to work areas on Association activities; maintain the existing decision excluding COAA officials from access to training courses; and terminate arrangements for COAA representatives on staffing and other similar committees.

&htab;260.&htab;The COAA states that these changes deny customs officers freedom of association and forces them, if they wish to dialogue with the employer, to join an organisation which has no community of interest with them and their profession. The changes are also causing hostility between customs officers and other government employees involved in the administration of customs services.

&htab;261.&htab;In its communications of 16 and 30 June 1987, the COAA relies on a similar situation which involved the Northern Territory Public Service Commission and the corresponding employees' association in 1984. Following the Freedom of Association Committee's recommendations, the Australian Federal Government upheld the provisions of the relevant ratified Convention and directed the employer to allow the association involved to represent those employees who wished to join it.

&htab;262.&htab;In its communication of 27 July 1987, the COAA stresses that, since the December ruling, it is outside the formal framework of conciliation and arbitration (except for the registration it retains to represent 200 navigational aid/lighthouse officers); its only means of negotiating employment conditions for customs officers is through collective bargaining, but the ACS has refused to bargain. From an attachment to the COAA's communication it appears that the COAA had raised the possibility of negotiations with the Public Service Board and received the following reply:

The Board does not believe it is appropriate to negotiate with one union about matters when it is another union's right to have those provided for by awards of the Conciliation and Arbitration Commission. Accordingly the Board is not prepared to negotiate with your Association independently on pay and conditions matters for Customs Officers classifications which could be the subject of award coverage. Nor as a matter of policy does it accept that staff occupying the same employment classifications might have basic conditions which are different depending on the union to which they belong. This would be the basis on which we would approach any discussions with you and deal with representations from you about matters affecting your members in the workplace.

&htab;263.&htab;Moreover, adds the complainant, in a press release handed out in May 1987 announcing the ACS's change in policy towards COAA, it states that the ACS can only discuss industrial issues with unions having legitimate coverage of customs officers, namely the ACOA. But, according to the complainant, COAA members are loath to relinquish their current membership so as to join the ACOA because of ideological and philosophical differences between the two organisations (e.g. the COAA is not politically aligned whereas the ACOA is; the COAA has spoken out on law enforcement and community protection issues whereas the ACOA has argued against its ideas). The COAA states that because of the unique role of customs officers in the public service, such workers do not wish to be locked into a broad-based industrial structure whereby they could be used as a powerful tool during industrial disputes; the COAA offers those workers independent autonomy but the ACOA does not. Lastly, the COAA mentions that a further dissuasion from joining the ACOA is the fact that its dues are 25 per cent higher than COAA dues, and that the ACOA makes no concession for low-income members whereas the COAA has special arrangements to assist them (i.e. 5 per cent of its members of low income have their fees paid from existing Association funds and therefore do not appear on payroll deduction statistics).

&htab;264.&htab;According to the COAA, faced with no conciliation and arbitration coverage, and no collective bargaining, it tried nevertheless to have the currently existing awards applied to customs officers (the two awards are: the General Conditions of Service Award for Public Servants and the Customs Officers Award). However, the ACS and the Public Service Board refused to negotiate any further application of them to COAA members. The employer in fact went further than simple refusal to recognise any representations by the COAA: it used the media extensively to advise that the COAA no longer represents customs officers and this led to a withdrawal of support by bodies which had purchased advertising space in the COAA's monthly journal. The complainant states that it has consequently been forced to reduce the journal's publication to every other month. More importantly, continues the COAA, after the adverse publicity, about 100 of its members resigned (they have apparently not joined the ACOA).

&htab;265.&htab;The complainant states that it has applied again to the Conciliation and Arbitration Commission for registration to cover customs officers and has asked the Administrative Appeals Tribunal for a determination of the lawfulness of the ACS's decision to disallow any COAA representations. In addition, the complainant has written to the Prime Minister and other relevant ministers for support. Although sceptical that the Commission will allow registration of the COAA to cover customs officers, it is actively seeking amalgamations with other unions sharing the COAA's interests and attitudes to law enforcement. It stresses that there can be no suggestion of a proliferation of unions covering the same class of employee, namely customs officers: the COAA has been representing such officers for 73 years (although the classification "customs officer" was only created in November 1983 when there was a restructuring of the customs service). It is only asking for its present registration to extend to customs officers as had previously been the case. If this is refused it only wants to be able to represent its own members for collective bargaining purposes.

&htab;266.&htab;In its letter of 30 October 1987, the COAA alleges that the ACS, other unions and the government authorities concerned are deliberately avoiding consultations with it in an effort to frustrate any solution to this complaint before the Governing Body Committee on Freedom of Association.

&htab;267.&htab;In its letter of 25 January 1988, the Government firstly explains the Australian federal industrial relations system which provides conciliation and arbitration for the prevention and settlement of industrial disputes through the Conciliation and Arbitration Commission and to which access is gained by the voluntary registration of employers' and employees' organisations. It points out that the COAA is registered under this system and thus is subject to the same rights and obligations as any registered organisation, namely: the requirement that organisations have rules specifying, by reference to their work, the persons who are eligible for membership in that organisation and apply to the Industrial Registrar for permission to change these rules; the right to object to other organisations being registered with coverage of those workers coming within the objecting organisation's "eligibility for membership" rule; the right to object to other organisations amending their membership rules to obtain such coverage; the right to have such objections heard by the Industrial Registrar and to appeal to the Commission.

&htab;268.&htab;This membership rule is important, states the Government, because a registered employees' organisation is able to make demands on employers in relation to all persons who are eligible to be members of the organisation concerned, whether or not such persons are in fact members. The Commission deals with such claims by conciliation or arbitration and may make binding awards in relation to them. Where an award is made, the organisation has an enforceable right of entry under the Conciliation and Arbitration Act to an employer's premises to ensure that the award is being observed. The Commission may not, however, exercise jurisdiction over a matter if it involves employees who are not eligible for membership of the registered organisation party to that matter.

&htab;269.&htab;The Government states that, under rule 5 of the registered rules of the COAA, membership of that union is open to the following persons:

Any person engaged permanently or temporarily in the Fourth Division of the Trade and Customs Department and in the Department of Health, and any of the following persons: (a) member of a lighthouse station or on the store staff, lighthouse branch; (b) member, including the radio-telegraphist, of the crew of the lighthouse vessels; (c) master or member of the crew of the launch, marine branch; (d) inspector of seamen; (e) as assistant, dairy export, lighthouse inspector ... all of the Commonwealth Public Service, upon payment of the prescribed contributions and dues, shall be entitled to become members of the Association.

&htab;270.&htab;The Government describes the restructuring of customs activities in Australia in November 1983 which led to the abolition of some, and creation of new classifications of customs officers. This restructuring was followed on, in July 1984, by the abolition of the divisional structure in the public service; the COAA as is seen from its membership rule had covered Fourth Division public servants, whereas Third Division officers were predominantly covered by the ACOA. It adds that those Commonwealth public servants engaged in customs activities (over 5,000 throughout Australia) and employed by the ACS have the following responsibilities:

- community protection (because the ACS is the front line of defence against illegal imports and exports and controls the movement of people, goods, ships and aircraft into and out of Australia); - industry assistance and development (because it implements many of the Government's measures such as tariffs, quotas, subsidies);

- revenue collection (because it collects customs and excise revenues for the Commonwealth Government);

- control at the customs barrier on behalf of other government departments and agencies, particularly in the areas of quarantine, fauna protection and immigration.

It states that, following a number of competing claims by relevant federally registered unions (the COAA, the Administrative and Clerical Officers Association, the Australian Public Service Association, the Federated Clerks Union of Australia) relating to employees in the new classifications (called customs officers and assistant customs officers), the Full Bench of the Commission found it necessary to decide whether they came within the "eligibility for membership" rules of the unions concerned. The matter came before the Commission in the Customs Case (a copy of which, dated 19 December 1986, is supplied) and the Full Bench decided, inter alia, that the COAA did not cover the new positions. The Government states that this was the second refusal of the COAA, because already in March 1984 (decision confirmed in July 1984) the COAA had lost an application to vary its membership rule. The Government adds that subsequently (in July 1985) the Administrative and Clerical Officers Association was successful in securing an award from the Commission covering the new classifications in the ACS.

&htab;271.&htab;Following the distribution of information circulars to ACS staff about the Full Bench decision of 19 December 1986, the Comptroller-General wrote on 21 May 1987 to the Secretary of the COAA setting out management's position in relation to industrial dealings with COAA officials. A staff circular was issued in similar terms on 25 May 1987, namely those reflected in paragraph 259 above. The ACS has since then been dealing with other federally registered unions (particularly the Administrative and Clerical Officers Association) over industrial matters affecting ACS staff who are eligible for membership of the unions concerned.

&htab;272.&htab;The Government explains that the question of the COAA's access to premises of the ACS and consultation with management was further considered and clarified in proceedings before the Commission in 1987 when a dispute arose between the COAA and the ACS over those issues. The Administrative and Clerical Offices Association and the Australian Public Service Association intervened. In a decision of 2 October 1987 (a copy of which is supplied), the Commission recommended that certain arrangements agreed to between the ACS and the COAA be implemented. These were that the COAA would be permitted access to persons employed as "Clerical Assistants, Grades 1-4", on the basis that such persons were in fact eligible for membership of the COAA. An existing award (No. 8 of 1926) applying to the COAA covers such grades. Final agreement has not yet been reached between the COAA and the ACS on the implementing of these arrangements. The Administrative and Clerical Officers Association has appealed against the decision, but the appeal has not been heard.

&htab;273.&htab;According to the Government, the COAA has applied again to the Industrial Registrar for consent to alter its "eligibility for membership" rule so that it may enrol persons in the new classifications of customs officers and assistant customs officers. The application, dated August 1987, attracted some objections, and technical objections were heard on 27 November 1987. No decision has yet been given.

&htab;274.&htab;As regards the complainant's description of the 19 December 1986 ruling refusing it coverage of customs officers, the Government points out that the COAA has not lost its registration and that its registered "eligibility for membership" rule is unchanged. The Government repeats that the structure of the ACS has changed and that all staff associations were consulted before the change occurred. This means that there is no change in the COAA's ability to represent its "industrial" members who are employees of the ACS within the COAA's membership rule, both before the Commission or in dealings with the management of the ACS, i.e. the limited class of lighthouse guards and other persons covered by Award No. 8 of 1926. However, there is also now a second type of member of the union - "non-industrial" members - who no longer comes within the COAA's membership rule but who have not left the union; they are free to remain members if they so wish.

&htab;275.&htab;According to the Government, contrary to the complainant's assertion, the Conciliation and Arbitration Act does provide for a system of appeals. It explains that acts or decisions by the Industrial Registrar may be appealed to a Presidential Member of the Commission (who has judicial status) or to a Full Bench of the Commission; an order made by a single member of the Commission may be appealed to a Full Bench; there is no further appeal on the merits from a decision of a Full Bench but, under the Australian Constitution, errors of law (including determinations of the scope of an "eligibility for membership" rule) may be reviewed by the High Court of Australia by way of a prerogative writ. The Government believes that this system of appeals provides for a fair review of decisions made by the independent office holders and tribunals under the Act. It also points out that, the Commission having found that the COAA's rules do not cover the new classifications, it is open under the Act for the union to seek to alter its rules to gain such coverage, an action which has - as is pointed out above - been undertaken.

&htab;276.&htab;As regards the alleged refusal of the ACS to engage in collective bargaining either directly with the complainant or before the Commission, the Government denies this and states that the employer is prepared to deal industrially with any union in relation to employees who come within the rules of the union and who are members of that union. Moreover, following the Commission's decision of 2 October 1987, the COAA's right to cover a limited class of employees of the ACS has been confirmed and the ACS is fully prepared to deal industrially with the COAA in relation to its members who come within that class. The Government adds that the ACS is also continuing to engage in normal industrial dealings with the other staff associations which represent ACS employees who come within their registered "eligibility for membership" rules. The particular group of employees at the heart of the COAA's complaint (customs officers and assistant customs officers) have been held to come within the coverage of the Administrative and Clerical Officers Association; that union has secured an award covering those classes of employees.

&htab;277.&htab;On the question of access to ACS premises by union officials, the Government repeats that, under the Act, organisations have an enforceable right of entry to employers' premises to ensure the observance of awards to which the organisations are party; therefore, the COAA has this right in relation to the limited class of persons covered by the relevant award (No. 8 of 1926). The Government's policy is to facilitate access by union officials to members or persons eligible to be members; none the less, provision of such access in the case of the ACS must be balanced against the need to avoid disruption of work and the maintenance of customs security. The Government adds that, in the light of the clarification of the COAA's membership in the 2 October 1987 decision, the ACS will permit access by COAA officials to "industrial" members at the workplace during working hours on the same basis as for officials of other staff associations. This entails the following: prior notice of entry is necessary in normal circumstances; means for satisfying (if necessary) ACS managers that persons concerned are members; no disruption of operations; in normal circumstances, any meetings of members should occur during work breaks or outside normal working hours. The Government states that union representatives also have access to notice-boards and may distribute literature to members.

&htab;278.&htab;In the case of the COAA's "non-industrial" members, states the Government, different considerations apply. The ACS recognises that, although these persons cannot be represented industrially by the COAA, they continue to have an interest in its affairs. Accordingly, access to such employees (including the distribution of literature to them) and the use of notice-boards are available. The ACS considers however that, although certain ACS facilities (e.g. reasonable use of photocopiers, telephones) should be available for union purposes in relation to industrial members, the same justification does not apply to "non-industrial" members. The position will, of course, be reconsidered when the outcome is known of the COAA's fresh application to the Industrial Registrar for consent to the alteration of its rules to cover the new classifications.

&htab;279.&htab;As regards the alleged refusal to consult with the COAA, the Government does not believe that it has contravened ILO Conventions in this matter. It states that, as events have occurred, there have been appropriate communications between the COAA and the ACS, as well as other relevant representatives of the Government (i.e. the Public Service Board and, following its abolition, the Department of Industrial Relations).

&htab;280.&htab;The Government denies the allegation that the ACS is forcing any of its employees to join the Administrative and Clerical Officers Association. It notes that this claim is in any case inconsistent with the assertion that the ACS is preventing unionisation of the staff of the ACS. On this latter point, the Government denies any prevention of unionisation in the ACS. It states that the fundamental difficulty faced by the COAA is that, under its existing rules, it is unable to admit as members employees in certain classifications in the ACS. The ACS has informed its employees of this position and indicated the consequences in terms of the industrial dealings between management and staff associations. There has not been any attempt to prevent staff from joining a union of their choice which has the right to represent them industrially. The Government also points out that the payroll deduction facility for union membership fees has been maintained for all staff associations, including the COAA.

&htab;281.&htab;The Committee observes that this complaint involves alleged interference in the COAA which - as a result of a restructuring within the Australian Customs Service - finds itself no longer able to represent in industrial relations matters those ACS employees now classified as customs officers and assistant customs officers. (The position of the COAA as regards those ACS employees covered by a 1926 Award - referred to as "industrial" members of the union - is not at all at issue.)

&htab;282.&htab;The Committee notes that those employees in the new classifications can (and apparently do) remain "non-industrial" members of the complainant union, and the Government continues to allow the COAA access to them, including distribution of literature, use of notice-boards and check-off arrangements. In addition, under the legislation in force, the employees involved can profit from the negotiations/awards won by the ACOA, which has the right to represent them industrially even if they are not members of the ACOA. It therefore appears to the Committee that the workers involved are not forced to relinquish union membership of their choice.

&htab;283.&htab;The Committee also notes that it is not the COAA's existence which is questioned, but rather that the legal position (as reflected in the Commission's Full Bench decision of 19 December 1986) favours a rival union, the ACOA. On this point the Committee would stress, as it has in past cases, that it is inappropriate for it to examine the merits of conflicts between unions concerning their respective areas of competence. [See, for example, 25th Report, Case No. 152 (UK/Northern Rhodesia), para. 216.] In the present case the Committee would particularly refrain from entering into any debate as to the coverage of customs officers since the complainant union itself, in wishing to enjoy the advantages which voluntary registration under the Conciliation and Arbitration Act gives it, has accepted a certain degree of regulation, such as the role of the Industrial Registrar and the Commission in the amendment of "eligibility for membership" rules.

&htab;284.&htab;As regards the ancillary allegations, namely that as a result of the decision on coverage of customs officers the complainant union has been denied various facilities and consultation rights which it had previously enjoyed and has even suffered financially (loss of advertising in its journal, loss of members), the Committee notes the information supplied by the Government. It observes that a Commission decision of 2 October 1987 concerning the very issue of rights of entry and consultation confirmed as "sensible and practical" the arrangements agreed on between the COAA and the ACS which enable that union to have access to a certain classification of employees in addition to its "industrial" members. When considered together with the information activities also permitted at the workplace in relation to the COAA's "non-industrial" members, the Committee is of the opinion that the current situation is not in breach of the freedom of association Conventions ratified by Australia.

&htab;285.&htab;The Committee would recall that the earlier Australian case to which the complainant makes reference (Case No. 1241, 234th Report, paras. 329 to 342, approved by the Governing Body in May 1984) involved a different situation, namely that of a union pending its application for registration under the Conciliation and Arbitration Act in which all facilities were denied until it obtained registration.

&htab;286.&htab;The Committee notes in conclusion that the complainant union has used - albeit unsuccessfully - the various procedures available to it to try to regain coverage of customs officers and that hearings on a fresh COAA application to alter its "eligibility for membership" rule were heard in November 1987. The Committee requests the Government to inform it of the outcome of this application, especially as regards its consequences, if any, on the current facilities' arrangements available to both "industrial" and "non-industrial" members of the COAA and its officers.

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

(a) The Committee considers that it is inappropriate for it to examine the merits of conflicts between two unions concerning their respective areas of competence. (b) It is of the opinion that there has been no breach of the freedom of association Conventions ratified by Australia by the current facilities' arrangements made available to the complainant union.

(c) It requests the Government to inform it of any change in these facilities occasioned by the outcome of the complainant union's fresh application for coverage of the customs employees involved in this complaint.

&htab;288.&htab;The Committee has examined this case on several occasions, most recently at its November 1987 meeting, when it presented an interim report to the Governing Body. [See the 253rd Report, paras. 257-301, approved by the Governing Body at its 238th Session (November 1987).]

&htab;289.&htab;Subsequently, the ILO received the following communications from the complainants: National Grouping of Workers (CNT): 29 October and 24 November 1987; World Federation of Trade Unions (WFTU): 3 November and 3 December 1987; International Confederation of Free Trade Unions (ICFTU): 4 and 26 November 1987 and 10 and 29 January and 4 February 1988; World Confederation of Labour (WCL): 4 December 1987; and International Federation of Plantation, Agricultural and Allied Workers (IFPAAW): 9 December 1987. The Government transmitted observations in communications of 26 October, 11 and 23 November 1987, and 7 and 14 January and 2 and 11 February 1988.

&htab;290.&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;291.&htab;During the most recent examination of the case, several allegations presented by the WCOTP, the ICFTU, the IFPAAW and several national confederations remained pending.

&htab;292.&htab;In a communication of 31 October 1986 the WCOTP referred to the arrest of Beatriz Brikmann Scheihing on 24 September 1986.

&htab;293.&htab;In its communication of 19 February 1987, the WCOTP reported that on 16 February 1987 Luis Muñoz, a trade union leader of the Teachers' College of Chile in Valparaíso, 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;294.&htab;In its communication of 26 March 1987, the ICFTU alleged 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 dismissal of teachers, an end to the privatisation of nationalised enterprises, and the respect of human and trade union rights, was violently broken up by police forces; among the injured were Manuel Bustos, the then 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;295.&htab;In its communication of 9 June 1987, the Unity Confederation of Chilean Workers (CUT) furnished new information concerning the complaints presented by the ICFTU, WCL, WFTU, and WCOTP, concerning the murder of José Carrasco Tapia, a trade union leader of the Metropolitan Journalists' Council, on 10 September 1986; the arrest and ill-treatment of Rodolfo Seguel, President of the National Grouping of Workers (CNT), of Jorge Pavez, President of the Professional Association of Teachers of Chile (AGECH) and 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, Adrían 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., Juan Jorguera 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 Part-Time 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 Olivares 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 and he and his family were sleeping, in January 1987; the refusal to allow several CUT trade union leaders to enter the country; 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, following his return to Chile in 1985. The Government also continues to refuse to allow many trade unionists to enter the country, including: Rolando Calderón Aranguiz, former General Secretary of the CUT, and Hernán del Canto Riquelme, Luis Meneses Aranda, Mario Navarro Castro, Bernardo Vargas Fernández, all former CUT national leaders.

&htab;296.&htab;In its communication of 25 August 1987, the National Confederation of Federations and Trade Unions of Chilean Textile and Allied Workers (CONTEXTIL) described the difficulties encountered by the workers in the Baby Colloky enterprise in signing a new collective agreement, and the enterprise's refusal to recognise the workers' representatives, as well as the unfair practices undertaken by the enterprise in transferring machinery and personnel from another of its plants in order to replace the workers who were legally on strike.

&htab;297.&htab;In its communication of August 1987, the National Confederation of Trade Unions, Federations and Associations of Chilean Workers in the Private Sector (CEPCH) denounced certain legal provisions (article 19, paragraph 19, article 23, paragraph 1, and article 54 of the Constitution of 1980, Act No. 18603 concerning political parties, section 210 of the Penal Code, and section 221 and section 223, paragraph 3, of the Labour Code), which make the holding of trade union office incompatible with affiliation in a political party, and require elected trade union leaders to sign an affidavit concerning any political affiliation.

&htab;298.&htab;In its communication of 30 September 1987, the IFPAAW alleged 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 of the CNC, despite his constitutional election at the Confederation's most recent congress, on the grounds that he had been arrested and subsequently charged under the National Security Act with participating in the mobilisation of workers as a trade union leader.

&htab;299.&htab;In its communication of 9 October 1987, the ICFTU referred to the arrest and assault at the hands of security forces of dozens of workers and trade unionists, after the authorities refused to authorise a national day of protest called by the CNT for 7 October 1987, and denounced numerous threats to the lives of CNT leaders, and in particular against its President, Manuel Bustos, as well as the Ministry of the Interior's judicial summons of CNT leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, and their subsequent imprisonment in the Santiago Penitentiary, following their interrogation by a judge of the Supreme Court on 20 October 1987.

&htab;300.&htab;At its 238th Session in November 1987, the Governing Body approved, among others, the following recommendations of the Committee:

(a) 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;

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

&htab;301.&htab;In its communication of 29 October 1987, the National Grouping of Workers (CNT) alleges that on 8 October 1987 the Government of Chile, acting through the Ministry of the Interior, filed suit against Manuel Bustos, President of the National Trade Union Co-ordinating Body (CNS) and the National Grouping of Workers (CNT), and Vice-President of the Confederation of Textile and Clothing Workers (CONTEVECH); against Arturo Martínez, General Secretary of the National Grouping of Workers (CNT), Vice-President of the National Trade Union Co-ordinating Centre (CNS) and President of the National Graphics Confederation (CONAGRA); and against Moisés Labraña, member of the National Executive Council and dispute officer of the CNT and Vice-President of the National Miners' Confederation, for breach of the State Security Act in connection with the call for a general strike on 7 October 1987. The Government charged the trade union leaders with inciting riots, provoking disturbances and calling for work stoppages, which led the Preliminary Hearings Officer of the Court of Appeals of Santiago to indict them and order their arrest. Their attorneys' request for release on bail was denied.

&htab;302.&htab;The CNT communication adds that the CNT, in agreement with its Council of Confederations, Associations and National Trade Unions (CONFASIN), called a general strike for 7 October 1987, primarily to request a solution to the vital problems affecting workers, which continue to worsen owing to the economic and social policies of the military regime. These demands, although repeatedly presented to the Government, received no reply; the workers therefore were compelled to resort to a strike in the forms of absenteeism, temporary work stoppages, tardiness, early departure and slow-downs.

&htab;303.&htab;The CNT communication also states that trade union leader Manuel Bustos has received death threats by phone and in writing, before and after the above-mentioned general strike; he filed a request for protection which was granted by the courts of law. Despite this request, the threats have continued in such forms as telephone calls to the CNT and to certain media, and threats sent to his trade union office and to his attorneys. Mr. Bustos' current place of confinement (the Santiago Penitentiary) does not offer any security as regards his physical integrity; for this reason he has requested that he be transferred to the penitentiary's annex, but to no avail. The communication concludes by requesting the ILO to demand that the Government immediately release trade union leaders Bustos, Martinéz and Labraña, who have acted only in fulfilment of their trade union responsibilities; the communication encloses a handwritten letter sent from the penitentiary by the above-mentioned trade unionists, which reiterates the allegations presented by the CNT in its communication.

&htab;304.&htab;In its communication of 4 December 1987, the World Confederation of Labour (WCL) associates itself with the complaint presented by the CNT on 29 October 1987.

&htab;305.&htab;In another communication dated 24 November 1987, the CNT states that, upon the appeal of the trade union leaders, the Court of Alzada upheld the first instance conviction of the above-mentioned CNT trade union leaders, but modified the legal grounds for the conviction. As a result, Messrs. Bustos, Martínez and Labraña face charges of inciting and inducing a strike and paralysing trade, production and public services.

&htab;306.&htab;In its communication of 3 November the World Federation of Trade Unions (WFTU) expresses its concern and denounces the imprisonment of CNT trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, for calling the general strike of 7 October 1987. In another communication of 3 December 1987, the WFTU expresses its concern over the Chilean Government's decision to strip Mrs. Carmen Pinto, President of the External Affairs Committee of the CUT, of her Chilean citizenship.

&htab;307.&htab;Likewise, the ICFTU communication of 4 November 1987 denounces the imprisonment of the CNT trade union leaders with common criminals, and the continued death threats against Manuel Bustos; one of these threats came from a terrorist group known as ACHA, announcing his execution on 7 November. The communication adds that the Government refuses to transfer the trade union leaders and prevents them from receiving foreign visitors.

&htab;308.&htab;In another communication of 26 November 1987, the ICFTU denounces new repressive measures which the Government has taken against Chilean trade union leaders, referring in particular to the case of Carmen Pinto, a former trade union leader of the CUT in Concepción, who currently resides in Paris; on 24 November 1987 the authorities of the Chilean Embassy in France refused to renew her passport, arguing that, pursuant to the legislation of 1980, Mrs. Pinto was no longer a Chilean citizen, without explaining the reasons for this in writing. The ICFTU communication adds that there are other unresolved cases of trade union leaders who have been arbitrarily stripped of their citizenship, citing the case of trade unionist Luis Meneses, a current official of the ORIT.

&htab;309.&htab;In another communication of 10 January 1988, the ICFTU reports that on 24 December 1987 the Chilean Government published a list containing the names of 54 exiled Chilean citizens, authorising them to return to the country. This list included the name of trade unionist Luis Meneses, regional officer of the ORIT, who had been arbitrarily stripped of his citizenship by virtue of Decree No. 191-23-2-77, signed by the President of the Republic; his citizenship has not yet been restored. The communication states that the Government refuses to give him his passport, and has only authorised him to visit the country on a temporary basis under special visa.

&htab;310.&htab;In its communication of 9 December 1987, the International Federation of Plantation, Agricultural and Allied Workers (IFPAAW) states that the Labour Directorate has withdrawn its objections to Mr. Eugenio León Gajardo's accepting the presidency of the National Confederation of Chilean Peasants, and thanks the ILO for its efforts in this connection.

&htab;311.&htab;In its communication of 29 January 1988, the ICFTU states that Manuel Bustos and Arturo Martínez, trade union leaders of the CNT, were sentenced on 25 January to 541 days' imprisonment for breach of a section of the State Security Act which prohibits calling for a national paralysation of work. Moisés Labraña, Vice-President of the CNT, was sentenced to 61 days' imprisonment. The communication also states that on 29 January, at 6.30 in the morning, police forces entered the residence of Manuel Bustos for the purpose of arresting him. According to the police, Mr. Bustos was to be taken to the Public Prosecutor's Office; the ICFTU adds that it does not appear that this incident is related to the ruling handed down by the examining magistrate in the case.

&htab;312.&htab;In a communication of 4 February 1988, the ICFTU expresses its gratitude for the ILO's intervention and states that Messrs. Bustos, Martínez and Labraña were released on the same day that they were detained, on 29 January 1988.

&htab;313.&htab;In its communication of 26 October 1987, the Government refers to the CUT communication of 9 June 1987 and states that the self-styled "Unity Confederation of Chilean Workers" does not have legal or de facto existence in Chile, and that its presumed leaders have not been elected by the Chilean workers whom they claim to represent; moreover, it does not have a domicile in the country nor a trade union base. As regards José Carrasco Tapia, the editor of a weekly publication, he was found dead on a public road on 9 September 1986; the Court of Appeals of Santiago appointed a senior magistrate to investigate the cause of his death, identify the authors of the crime, and punish them, but no progress has been made to date. There is no information available concerning the presumed trade union activities of the deceased.

&htab;314.&htab;As regards Messrs. Jorge Pavez and Guillermo Azula, who were allegedly arrested in March 1987, the Government reports that Mr. Pavez was arrested on 12 March 1987, along with five other persons, for attempting to prevent the flow and traffic of persons and vehicles on a public thoroughfare; he was released immediately thereafter by the police, after having been summoned by the Local Police Court, which is entrusted with examining misdemeanors and levying small fines for traffic violations. As regards Mr. Azula, there are no records of his arrest and he is currently free. Nor are there any records whatsoever of the alleged ill-treatment of these persons.

&htab;315.&htab;As regards Domingo Alvial Mundaca, he is on trial in the First Court of Santiago on charges of illegal possession of explosives and detonators and the performance of terrorists acts. As regards 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 Irarrázabal C., Sergio Jeria I., Juan Jorquera I., Erasmo Mayolinca Ch., Marcos Sala B., Leonardo Torres G. and Yuri Vargas A., presumed miners who are allegedly being held at the Santiago Penitentiary for having participated in a protest day, there are no records to support these nebulous and unfounded accusations: the Santiago Penitentiary is a correctional facility which houses delinquents who have been condemned by criminal courts to terms of imprisonment, and not persons who have allegedly invoked labour rights.

&htab;316.&htab;As regards the alleged search of the office of the Self-Employed and Part-Time Workers' Trade Union Federation on 1 May 1986, as well as that of the home of Alejandro Olivares Pérez, there are no records or information concerning these alleged illegal searches; in any event, if they took place, it was not at the orders of any government authority.

&htab;317.&htab;As regards the alleged assault on Angel Arriagada Arriagada, which is reported to have occurred in somewhat vague circumstances on 16 April 1986, the Government can provide no information. In any event, the person concerned has the right to request that the Criminal Judge open an investigation, sanction the guilty parties and require the payment of damages. To the Government's knowledge, no criminal suit has been filed in this matter.

&htab;318.&htab;As regards Juan Espinoza and the allegation that some one attempted to set fire to his house in January 1987, while he and his family were sleeping, the Government has no information whatsoever. The alleged crime would fall under the provisions of the Criminal Code. Mr. Espinoza is free to file charges in the corresponding Criminal Court. Serious penalties are prescribed for the crime of arson; the Government is unaware of any suit or criminal charges filed in this connection.

&htab;319.&htab;As regards Luis Guzmán, he is being tried by the Third Public Prosecutor of Santiago in Case No. 513/84 for crimes punishable under Act No. 17798 of 1982 on the control of arms and explosives; other charges punishable under the Criminal Code of which he is accused include the forgery of public documents and entering the country surreptitiously at other than a legal border crossing. Thus, charges that he has been illegally imprisoned are unfounded, since his detention was ordered by the courts in the light of the crimes with which he is charged.

&htab;320.&htab;As regards Sergio Ruiz Lazo, he was authorised to enter the country on 4 June 1987. He has not been, and is not now, under arrest. Border police records do not contain any information concerning the illegal entry of these persons into the country, since they crossed the border at unauthorised locations. As regards Mireya Baltra Moreno, she is in the country and enjoys complete freedom. As regards Rolando Calderón Aránguiz, a former Minister of Agriculture, Hernán del Canto Riquelme, a former Minister of the Interior, and Mario Navarro Castro, their names appear on a list of persons who are barred from entering the country. The Government is currently reviewing the circumstances of all persons who are barred from entering the country with a view to lifting this restriction.

&htab;321.&htab;In another communication of 11 November 1987, the Government furnishes information concerning several allegations in this case, in particular concerning the alleged detention of persons which is claimed to have taken place on 7 October 1987, as well as the alleged threats received by Manuel Bustos, and the court summons of Manuel Bustos, Arturo Martínez and Moisés Labraña in connection with their liability for injury to private individuals and damage to public and private property resulting from a day of social protest which they instigated. The Government's communication states in this connection that it is not true that security forces carried out dozens of arrests or assaulted workers on 7 October 1987. According to the Government, Manuel Bustos, together with Messrs. Martínez and Labraña instigated and called a day of social protest with the objective of completely paralysing all activities in the country, under the pretext that the Government had not favoured their requests to put an end to the sale of state enterprises to national and foreign entities; to find a solution to the debt of families which had purchased housing through long-term mortgages with monthly payments; to repeal the current budgeting system; to organise collective bargaining by branch of activity; to enact legislation requiring employers to pay a minimum wage equivalent to $20,000, which would represent an increase of 100 per cent; to adjust wages; to pay bonuses for national holidays; to readjust pensions, etc.

&htab;322.&htab;The Government's communication goes on to describe in detail how it is seeking to comply with many of the demands presented by workers. The Government adds that Messrs. Bustos, Martínez and Labraña considered that the Government had not responded favourably to their exorbitant and unfounded requests; they joined forces with a group of leaders of opposition political parties and with student organisations, in calling for a day of social protest on 7 October 1987, which was designed to paralyse all activities throughout the country by disrupting the public order through public demonstrations in the streets, this action led to the blocking of traffic, disorder on public thoroughfares, attacks on uniformed police, the death of three persons, numerous injuries, and substantial damage to private and public property, as well as violent demonstrations, which significantly perturbed the country's public order and tranquility. One of the means used to paralyse activities was to prevent workers from gaining access to their places of work by means of numerous assaults on city buses and other means of public transportation, preventing them from keeping to their schedules and itineraries. The outcome of this action was reported by the trade union leaders of the National Confederation of Land Transport Workers of Chile (CONATRACH); specifically, 42 passenger vehicles were completely destroyed, 600 buses and mini-buses suffered considerable damage and were withdrawn from service pending repairs, and 1,500 drivers of these vehicles have been temporarily laid off. In addition to the death of three persons, one of them a two-year old child, two policemen were seriously injured.

&htab;323.&htab;The Government's communication adds that it is not true that the authorities denied permission for the 7 October day of protest; rather, the persons instigating and convening the day of protest failed to request authorisation pursuant to police regulations and standard practice throughout the world, in spite of the fact that the decision to call this day of protest had been taken on 19 August 1987. On the basis of these facts, which led to public concern and significant damage, as well as the death of innocent persons and assaults on uniformed police, the authorities issued a judicial summons alleging the breach of sections 4, subsection (a) and 6, subsection (a), (c) and (i), of Act No. 12927 concerning national security, which has been in effect since 1958. The Court of Appeals of Santiago appointed an examining magistrate to investigate these crimes under case 42-87; on 21 October, Manuel Bustos, Arturo Martínez and Moisés Labraña were indicted in accordance with the Code of Criminal Procedures for breach of Act No. 12927 concerning national security, and for disrupting national activities. On 21 October the examining magistrate ordered the preventive arrest of these persons, pending the completion of his investigation.

&htab;324.&htab;As regards the allegations of threats to the life of Manuel Bustos by unidentified persons, the Government's communication reports that Mr. Bustos has stated that he has received threats against his physical integrity through recordings transmitted by telephone to his home, and through unsigned letters and leaflets; in this connection, he filed a request for protection on 16 October, which was granted by the First Chamber of the Court of Appeals of Santiago; the Court also provided for uniformed police to ensure round-the-clock protection at his home, place of employment and trade union office, for a period of 30 days. Following his preventive detention, Mr. Bustos's attorneys presented a second request for protection in connection with threats Mr. Bustos allegedly received while in gaol, and requested that he be transferred from the prison in which he was housed, to another known as "anexo Capuchinos", which has more ammenities and would supposedly provide greater security. The appeal was rejected on 23 October, on the grounds that it was contrary to law. In its communication the Government states that it will send information concerning the investigations as these are released by the judge, since according to the Code of Criminal Procedures, the investigation phase is subject to secrecy. The Government adds that it sought to protect the safety of the above-mentioned trade union leaders by transferring them to the "annexo Capuchinos" on 4 November, in accordance with the request presented by their attorneys.

&htab;325.&htab;In another communication of 23 November 1987, the Government reiterates the statements made by its representative on 12 November 1987 before the 238th Session of the Governing Body, to the effect that the examining magistrate in the judicial proceedings granted release on bail to Manuel Bustos, Moisés Labraña and Arturo Martínez, leaders of the National Grouping of Workers.

&htab;326.&htab;As regards the proceedings against Arturo Martínez, Moisés Labraña and Manuel Bustos for breach of section 11, paragraph 2 of Act No. 12927 of 1958 on national security, the Government, in its communication of 14 January 1988, adds that the examining judge provisionally released these persons on 12 November 1987, as reported in previous communications; it further states that the case is in plenary proceedings, and that the defendants have been notified of the charges formulated by the examining judge. The communication adds that the persons under indictment are duly counselled and represented by qualified and experienced attorneys, and that new information, as it arises, will be forwarded to the Committee on Freedom of Association.

&htab;327.&htab;In its communication of 11 November 1987, the Government refers to a complaint presented by the National Confederation of Trade Unions, Federations and Associations of Chilean Workers in the Private Sector (CEPCH) concerning the provisions of Act No. 18603 on the organisation of political parties, pursuant to which elected trade union leaders must sign an affidavit concerning their affiliation, if any, to political parties. In this connection, the Government states that the purpose of this affidavit is to enable the Electoral Services Office to instruct the political party concerned to rescind the elected trade union official's affiliation in the party; the purpose is not to prevent the trade union leader from having a doctrinary opinion concerning the Government's policies, but to enable him to devote all of his energies to trade union activities and the interests of the workers he represents. The Act is also intended to prevent political parties from using trade unions to reach their own objectives, without allowing the members and supporters of trade unions to disagree with party doctrine. Simultaneous roles as trade union leader and political militant would deprive the trade union movement of the independence it needs to act in defense of the legitimate economic and occupational interests of its members. In any event, according to the Government, it must be recalled that the trade union leader may in all freedom maintain, conserve and exercise all political rights, except for membership in a political party while he holds trade union office. Lastly, the communication notes that, without prejudice to what is stated concerning this aspect of the complaint, the national Government felt it necessary to issue a written statement to the Labour Administration as regards the question of maintaining the requirements concerning affiliation in political parties; on 30 October 1987 it instructed the Labour Administration to eliminate this requirement.

&htab;328.&htab;As regards the allegations presented by the National Confederation of Textile and Allied Workers' Federations and Trade Unions of Chile (CONTEXTIL) concerning the problems encountered by the workers in the Baby Colloky enterprise, the Government's communication of 11 November 1987 states that the workers of the "Sociedad Comercial e Industrial Colloky, Ltda." enterprise, organised for the purpose of bargaining, presented to management a draft collective agreement dated 20 June 1987. The workers appointed as negotiators began to enjoy time off and protection against dismissal five days prior to the date on which the draft was submitted. On 2 July 1987 the enterprise replied to the draft presented by the workers, and sent a copy of the reply to the respective Labour Inspectorate. The workers' Bargaining Committee objected to the employer's observations to the Labour Inspectorate. Ultimately, the parties failed to reach an agreement, and it was thus that on Friday, 31 July 1987, and in the presence of labour inspectors acting as witnesses, the workers' union voted in the majority to strike, informing the enterprise that the strike would begin on Monday, 3 August 1987, at 16.00 hours. Pursuant to the terms of section 341 of the Labour Code, strikes which have been called must begin on the third working day following the decision to strike. In accordance with this legal provision, the trade union should have called the strike for Tuesday, 4 August 1987. However, the workers illegally decided to go on strike one day prior to the time established by law, leaving their jobs suddenly, unjustifiably and without the enterprise's permission, since the working day ends at 18.00 hours. As a result of this sudden walk-out, the enterprise suffered serious economic losses.

&htab;329.&htab;The Government's communication adds that on Monday, 3 August 1987, the enterprise requested that a notary public personally certify that the workers had walked off the job. In a note dated 6 August 1987, the enterprise informed the Labour Inspectorate that the workers had left their posts prior to the end of the working day, thus exposing themselves to a termination of the employment contract pursuant to the terms of section 156, clause 4 of the Labour Code, which provides that the contract of employment shall be terminated when: "workers abandon their posts, which is understood to mean: the sudden and unjustified abandonment by the worker of the worksite during working hours, without the permission of the employer or his agent". On 19 August 1987, the enterprise requested before the Fourth Labour Court of Santiago that the workers who had abandoned their posts suddenly and without justification be deprived of their labour rights; on 30 October 1987, following a more careful study of the situation, and following the Court's recommendations for conciliation, the enterprise reached an agreement with its workers, thus putting an end to the legal proceedings. The employer reinstated three workers and agreed to pay them back-pay. Subsequently, 12 workers counselled by their attorney, reached an agreement with the enterprise concerning the termination of their employment, an end to the judicial proceedings, and the payment of the indemnities and allowances specified in the judicial settlement. The Government has no further information to communicate in this matter.

&htab;330.&htab;The Government sent a communication dated 7 January 1988 in which it states that it has authorised trade union leader and ORIT official Luis Meneses Aranda to return to the country.

&htab;331.&htab;In another communication dated 14 January 1988, the Government furnishes additional observations concerning some of the allegations in this case, and in particular, in connection with the legal proceedings against Beatriz Brikmann Scheihing, which have been before the Court of First Instance since 4 June 1987; her attorney requested her release on bail, which was granted by the Public Prosecutor of Valdivia, and subsequently upheld by the Collegial Court of Santiago. Mrs. Brikmann was released on 23 September 1987 and requested authorisation to leave the country and travel to the Federal Republic of Germany where she is currently residing. The Government states that it is unaware of any trade union office which Mrs. Brikmann may have held, or for that matter, of any involvement whatsoever in trade union matters.

&htab;332.&htab;As regards the alleged threats to the lives of trade union leaders of the AGECH, of the Fifth District Teachers' College, of the Teachers' Trade Union of Viña del Mar, and of the Workers in Commerce Trade Union, of 6 February 1987, concerning José Luis Muñoz, Andrés Reyes, Hugo Guzmán, María Isabel Torres, Sergio Narváez and Florencio Valenzuela, the Government states that these threats were allegedly made by means of telephone calls, and that official investigations have not succeeded in identifying the persons responsible or establishing the extent to which they pose a real danger. The Government's communication adds that it is very difficult to identify persons who make accusations or threats anonymously by telephone or from a public telephone; it further notes that Chilean legislation establishes a special judicial recourse, the so-called "Request for Protection"; when the seriousness and authenticity of the facts are proven, the Court of Appeals orders police protection for a specified period.

&htab;333.&htab;As regards the ICFTU communication of 26 March 1987 concerning allegations that police forces intervened in a national mobilisation of workers convened by the National Grouping of Workers (CNT) on 25 March 1987, in which several leaders of that organisation were wounded or detained, the Government's communication states that Rodolfo Seguel and Manuel Rodríguez were detained for one hour by uniformed police for attempting to prevent the free flow of traffic; they were immediately released and were not summoned by the court. Manuel Bustos was not detained, and there are no records that Luis Suárez was arrested by uniformed police. The communication adds that this case concerns simple skirmishes with the police in downtown Santiago, in which the police sought to counter the above-mentioned efforts to tie up traffic. It is not true that there was a national mobilisation as alleged by the complainants, nor that persons were injured as a result.

&htab;334.&htab;The Government's communication of 14 January 1988 refers also to the IFPAAW complaint regarding Eugenio León Gajardo's ineligibility to hold trade union office in the National Confederation of Chilean Peasants (CNC). The Government states that the Labour Office issued resolution No. 1541 on 21 August 1987, declaring Mr. León Gajardo ineligible to hold office in the CNC on the grounds that he was not legally qualified to hold trade union office. On the basis of new information received in this matter, the Labour Office issued resolution No. 1810 on 3 November 1987 which rescinded resolution No. 1541 and left Mr. León Gajardo free to hold office in the CNC. He is currently presiding over this trade union organisation and carrying out his trade union activities in absolute freedom.

&htab;335.&htab;As regards the ICFTU complaint contained in a communication of 26 November 1987 concerning the refusal to renew passports and to allow Luis Meneses and Carmen Pinto to enter the country, the Government's communication confirming a previous communication of 7 January 1988 indicates that official circular No. 3665 of 23 December 1987, issued by the Department of the Interior, authorised Luis Meneses to enter the country definitively and permanently; consequently, Mr. Meneses may enter the country whenever he wishes to do so since restrictions in this connection have been lifted. As regards the situation of Carmen Pinto, the Government's communication states that official circular No. 4920, dated 27 July 1984, of the Department of the Interior authorised her to enter the country definitively. The communication reports that the International Police Department reported that Carmen Pinto entered Chile on 13 July 1985, under Chilean passport number 4084 in her name, issued by the Consulate of Chile in France, and that she left the country with the same passport on 5 September 1985. As regards the allegation that the Chilean embassy in France refused to renew her passport on 24 November 1987, the staff of the Consulate General of Chile in Paris have reported that they have no records that this person requested an appointment on the date indicated in the ICFTU communication. Nevertheless, the Government's communication goes on to say that instructions have been issued to the effect that should Mrs. Carmen Pinto again visit the Chilean Consulate General in Paris, she be personally attended by the Consul and any misunderstandings clarified. Lastly, it should be recalled once more that the prohibitions which barred these persons from entering the country were in no way related to trade union activities which they may have carried out in the past in Chile. Moreover, the Government rejects the false charges that it is adopting "new methods of repression against Chilean trade union leaders". The Government's communication states that by granting entry to the country and terminating exile, it shows its intention to return as soon as possible to the broadest institutional normalcy, so that all Chileans may choose their own destiny, in peace and free from foreign interference.

&htab;336.&htab;In a communication dated 2 February 1988, the Government states that Luis Meneses Aranda, if he has not acquired another nationality, must request travel documents from the government of the country where he is residing. The Chilean consular authorities have been instructed to grant him a temporary visa for 90 days so that he may visit the country and personally handle his temporary or permanent residence, whichever is the case, and regularise his situation.

&htab;337.&htab;In a further communication of 11 February 1988, the Government states that Messrs. Bustos, Martinez and Labraña have been released and have brought an appeal to modify the sentences handed down against them. The appeal will be heard by a higher court during the last week of February 1988.

&htab;338.&htab;The allegations which remained pending following the most recent examination of the case in November 1987, concerned the trial of Beatriz Brikmann; the threats to the lives of trade union leaders of the AGECH, the Teachers' Trade Union of Viña del Mar, and of the Workers in Commerce Trade Union; the intervention by police forces in a national mobilisation of workers convened by the National Grouping of Workers (CNT) which led to the injury and arrest of leaders of that organisation; the difficulties encountered by workers in the Baby Colloky enterprise in signing a collective agreement and the enterprise's refusal to recognise the workers' representatives; the legal provisions which make the holding of trade union office incompatible with affiliation in a political party; the ineligibility of the president of the National Confederation of Chilean Peasants (CNC) to hold the office to which he was elected; the assault and arrest at the hands of security forces of dozens of workers and trade unionists during a national day of protest called by the CNT in October 1987, and continued threats against the lives of CNT president, Manuel Bustos, as well as the judicial summons of CNT leaders Manuel Bustos, Arturo Martínez and Moisés Labraña and their subsequent imprisonment. Since then, the Committee has received new allegations concerning the authorities' refusal to renew the passport of Carmen Pinto, and the situation of trade unionist Luis Meneses, who was stripped of his Chilean citizenship and has been authorised to enter the country only on a temporary basis, and the sentence handed down as regards CNT trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña.

&htab;339.&htab;As regards the WCOTP complaints concerning telephone threats to the lives of trade union leaders of the Teachers' College of Chile in Valparaiso, the AGECH, the Teachers' Trade Union of Viña del Mar, and the Workers in Commerce Trade Union, as well as the complaints filed by the CNT and the ICFTU concerning continued threats to the lives of trade union leader Manuel Bustos, the Committee takes note of the information furnished by the Government concerning the corresponding investigations and the request for protection provided for by legislation when the authenticity and seriousness of the threat is demonstrated; in view of the numerous allegations of this nature which have been received since this case was opened, the Committee wishes to point out that a trade union movement in which trade union leaders are able to represent fully the interests of workers, in freedom and independence, cannot develop where trade unionists are threatened and live in fear; it urges the Government to undertake judicial investigations with a view to putting an end to these acts of intimidation which sow uncertainty in trade union ranks.

&htab;340.&htab;As regards the death of José Carrasco Tapia, a trade union leader of the Metropolitan Journalists' Council, and the attempted murder of Juan Espinoza, a national trade union leader of the Confederation of Maritime Workers (CONGEMAR) and his family, the Committee notes that in the case of Mr. Carrasco Tapia the Government states that the matter is being investigated, although the guilty parties have not yet been identified; and that in the case of Mr. Espinoza and his family, no charges were filed in connection with the attempted arson of his home, while he and his family slept; the Committee recalls that murder and other violent acts affecting trade unionists are serious matters which require the authorities to adopt severe measures with a view to re-establishing a normal situation.

&htab;341.&htab;As regards the various complaints concerning the arrest of trade unionists, presented by the CUT, ICFTU, WFTU and CNT, concerning trade union leaders Rodolfo Seguel (CNT), Manuel Rodríguez, Jorge Pavez (AGECH) and Guillermo Azula (AGECH), of 24 March 1987, for having participated in a peaceful demonstration to demand the reinstatement of 8,000 teachers dismissed during the course of 1987, the Committee takes note of the information furnished by the Government to the effect that these persons were arrested for obstructing the passage of vehicles and persons on a public thoroughfare, and that they were released following a summons by the Local Police Court, a court which imposes small fines for traffic violations, with the exception of Mr. Azula, in regards to whom there are no records of arrest and who is currently at liberty. As regards the arrest of a number of miners and their confinement in the Santiago Penitentiary for participating in days of protest in support of the right to work, the Committee takes note of the information furnished by the Government to the effect that, with the exception of Domingo Alvial Mundaca, who is on trial for the illegal possession of explosives and detonators and for engaging in terrorist acts, the other miners mentioned by the complainant organisation are not currently under arrest. As regards the detention of former CUT trade union leaders Luis Guzmán and Mireya Baltra, who are allegedly being detained illegally in the Santiago Penitentiary, as well as that of Sergio Luis Lazo, who is alleged to have subsequently disappeared, the Committee takes note of the information furnished by the Government to the effect that Luis Guzmán is being tried for the crimes specified in the Act on the control of arms and explosives, for forgery of public instruments, and for entering the country illegally, and is not being detained illegally, but that his confinement has been ordered by the courts; likewise, the Committee takes note of the fact that Sergio Luiz Lazo was authorised to enter the country on 4 June 1987, and that he has not been, and is not currently being, detained; and that Mireya Baltra is in the country and enjoys complete freedom.

&htab;342.&htab;As regards the complaint of several trade union organisations concerning the arrest and subsequent imprisonment of trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, on charges of incitement to strike and paralyse trade, production, and public services on 7 October 1987, the Committee takes note of the information supplied by the Government concerning the proceedings against the above-mentioned trade union leaders. The Committee expresses its concern that Manuel Bustos and Arturo Martínez have been sentenced to 541 days' imprisonment, and Moisés Labraña to 61 days' imprisonment for breach of the State Security Act, and wishes to emphasise that the arrest and sentencing of workers' representatives for activities related to the defence of workers' interests are contrary to the principle of free exercise of trade union rights. It notes in this connection that Messrs. Bustos, Martínez and Labraña are free and have appealed against these sentences.

&htab;343.&htab;The Committee must also express its concern with respect to the continuing numerous complaints received since this case was opened, in connection with the arrest and/or imprisonment of trade unionists, although it wishes to state that it has taken note of the fact that certain arrests for which complaints have been field (in particular, the arrest of Luis Guzmán and Domingo Alvial Mundaca) fall beyond the scope of the freedom of association and, therefore, the competence of this Committee. In this connection, the Committee wishes to recall that although trade union responsibilities do not confer the right to transgress legal provisions with impunity, such legal provisions should not undermine basic guarantees as regards freedom of association, nor sanction activities which, in accordance with generally accepted principles, should be considered as legitimate trade union activities.

&htab;344.&htab;As regards the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Union, and the home of trade union leader Alejandro Olivares Pérez on 1 May 1986, the Committee takes note of the information supplied by the Government to the effect that there is no record or knowledge of these alleged illegal searches, and that in any event, they were not ordered by government authorities.

&htab;345.&htab;As regards the refusal to allow Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro to enter the country, the Committee takes note of the information supplied by the Government to the effect that the names of these persons appear on a list of persons who are not authorised to enter the country, but that the Government is currently reviewing the situation of all persons affected by this prohibition, with a view to lifting this restriction.

&htab;346.&htab;As regards the ICFTU communication of 26 November 1987 concerning the refusal to renew the passport of Carmen Pinto and to allow access to the country to trade unionist Luis Meneses Aranda, the Committee takes note of the information furnished by the Government to the effect that there is no record that Mrs. Pinto ever requested the renewal of her passport on the date indicated in the ICFTU communication, at the Consulate General of Chile in Paris, and that the Government has issued instructions that, should Carmen Pinto again visit the Chilean Consulate General in Paris, she be personally attended by the Consul and any misunderstandings clarified. As regards the case of Luis Meneses Aranda, the Committee takes note of the fact that official circular No. 3665 of 23 December 1987 authorises him to enter the country on a 90-day visa so as to be able to personally deal with the question of his temporary or permanent residence and to regularise his situation. In this connection, the Committee wishes to recall the principle that the confinement or exile of trade unionists, even when based on a state of national crisis, should be provided with the necessary safeguards to prevent that these measures be used to curtail the free exercise of trade union rights.

&htab;347.&htab;As regards the complaint presented by the CEPCH concerning legal provisions which establish and regulate the incompatibility between trade union office and affiliation in a political party, and the requirement that elected trade union leaders sign an affidavit concerning any political affiliation, the Committee takes note of the information supplied by the Government to the effect that such provisions are designed to prevent the same person from holding simultaneous roles as a trade union leader and militant in a political party, a condition which would deprive the trade union movement of the independence it needs to act in the defence of the interests of workers, and that in any event, trade union leaders maintain and may exercise all of their political rights; likewise, the Committee notes that the requirement that elected trade union officials sign an affidavit concerning their affiliation, if any, in a political party, was rescinded by the Government on 30 October 1987. Nevertheless, the Committee wishes to recall the principle that legislation which prohibits certain persons from holding trade union office on the basis of political opinions or affiliations is contrary to the right of trade unionists to elect their representatives in full freedom [see 202nd Report, Case No. 911 (Malaysia), para. 139].

&htab;348.&htab;As regards the IFPAAW communication concerning Eugenio León Gajardo's ineligibility to hold office in the CNC, the Committee notes that his ineligibility has been rescinded following the examination of new evidence, by means of resolution No. 1810 of 3 November 1987, and that Mr. León Gajardo is currently presiding over the CNC, the office to which he was elected.

&htab;349.&htab;As regards the allegations presented by the National Confederation of Textile and Allied Workers' Federations and Trade Unions of Chile (CONTEXTIL) concerning the problems encountered by the workers of the Baby Colloky enterprise in signing a collective agreement, and certain unfair labour practices carried out by the enterprise, the Committee takes note of the information furnished by the Government to the effect that workers in the Baby Colloky enterprise went on strike one day before the expiration of the period specified by legislation, which caused the enterprise economic hardship and constituted grounds for the termination of employment contracts. The Committee notes that on 30 November 1987 the enterprise reached a settlement in court with the workers, and in accordance with conciliation guide-lines laid down by the court in an effort to resolve the matter, the enterprise reinstated three workers with back-pay, and terminated the employment contracts of 12 workers by mutual agreement, upon payment of the indemnities established by the court.

&htab;350.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Once again, the Committee expresses its concern over the continuing number of complaints presented since this case was opened, which reflects the difficulties encountered by the trade union movement and its leaders.

(b) As regards the dispute involving workers in the Baby Colloky enterprise, in view of the fact that the parties have reached an agreement in keeping with the conciliation guide-lines set down by the court, the Committee considers that this aspect of the case does not call for further examination.

(c) As regards Eduardo León Gajardo's disqualification from holding the office to which he was elected by the CNC, and his subsequent qualification, the Committee considers that this aspect of the case does not call for further examination.

(d) In the light of the number of complaints concerning threats to the lives of trade unionists, the Committee urges the Government to undertake judicial investigations with a view to determining once and for all who is responsible for these threats, and to determine the seriousness of the threats and intention of the parties involved in each case, and to provide the necessary protection as soon as these threats are reported, with a view to ensuring that trade union activities may take place normally in a climate free of fear and intimidation. (e) As regards the death of José Carrasco Tapia, trade union leader of the Metropolitan Journalists' Council, the Committee requests the Government to supply information on developments in the judicial investigations in this case; as regards the attempt to burn alive Mr. Espinoza, trade union leader of CONGEMAR, and his family, the Committee urges the Government to take appropriate measures to punish the authors of these alleged violent acts, which breed fear and uncertainty throughout the labour movement.

(f) As regards the many allegations concerning the detention of trade unionists and, in particular the detention of Manuel Bustos, Arturo Martínez and Moisés Labraña, the Committee expresses its great concern at the sentencing of these three CNT trade union leaders, and requests the Government to supply information on the legal situation, and in particular on the outcome of the appeal filed by these trade unionists.

(g) In connection with the various allegations that trade unionists have been prevented from entering the country, the Committee urges the Government to rescind, as soon as possible, the bans against Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro and to inform it in this regard; it also requests the Government to keep it informed of the situation of Mr. Meneses Aranda, particularly as regards the restoration of his Chilean nationality.

(h) As regards the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and the home of trade union leader Alejandro Olivares Pérez, the Committee urges the Government to undertake investigations with a view to identifying the persons responsible for these actions and to inform the Committee of the results of these inquiries.

(i) As regards legal provisions which establish incompatibility between trade union office and affiliation in a political party, the Committee requests the Government to amend the legislation to bring it into line with general principles of freedom of association and, in particular, to repeal those legislative provisions which restrict the workers' right to elect their representatives freely by making the holding of trade union office incompatible with membership in a political party.

&htab;351.&htab;The Committee has already examined this case on two occasions, most recently at its May 1987 meeting, when it submitted interim conclusions. [See 251st Report, paras. 399-416.] Due to the lack of a reply from the Government to its repeated requests, the Committee at its November 1987 meeting addressed an urgent appeal to it for its observations. The Committee also recalled that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report, it would present a report on the substance of the case at its next meeting even if the Government's observations had not been received in time. [See para. 17 of the 253rd Report.] Subsequently, in a communication dated 23 October 1987, the International Confederation of Free Trade Unions (ICFTU) has presented new allegations. The Government has supplied neither observations nor comments.

&htab;352.&htab;Paraguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;353.&htab;The outstanding allegations in this case relate to the detention of trade union activists and leaders who are named by the complainants, to the violent repression of peaceful trade union demonstrations and to various acts of interference with and pressure exerted against trade union organisations and their leaders.

&htab;354.&htab;In particular the complainants referred to the climate of violence and repression affecting the trade union movement during 1986 and 1987 in the hospitals, press, teaching and agricultural sectors.

&htab;355.&htab;They referred to the questioning of doctors during a strike which took place on 25 April 1986 at the José Bellasaï Hospital, to the ban on May Day celebrations in 1986, to the subsequent violent repression and to the fact that a large number of persons were injured by the forces of order and taken to hospital, to the attacks perpetrated on 3 May by some 150 militants of the Colorado party who were authorised to enter the hospital premises and who are said to have struck doctors and nurses who were attending the injured, to the destruction of the Ñanduti radio station by the same group on the grounds that this radio supported the workers and their organisations during the trade union demonstrations. The complainants subsequently stated that the doctors who had been arrested during the strike were released for lack of evidence of their having committed an offence.

&htab;356.&htab;Furthermore the complainants described the attack by the police on the headquarters of the Federation of Bank Employees (FETRABAN) in April 1986 and again in March 1987, and the detention for a number of days in March 1987 of the General Secretary of the Workers' Inter-Trade Union Movement (MIT), Mr. Victor Baez, during a meeting of his organisation. Mr. Baez was subsequently released.

&htab;357.&htab;The complainants also alleged that in March 1987 Raquel Aquino, leader of secondary-school students, was arrested for having expressed her solidarity with the trade union movement. In addition, a leader of the MIT was obliged to give up her job as philosophy teacher at the National Ladies' College and was not allowed to protest this.

&htab;358.&htab;Lastly, the complainants denounced the arrest in 1987 at Ononnondivepa of the rural trade union leaders Marcelino Corazón, Medina and Bernardo Tonales and the General Secretary of the Paraguay Cotton Company Workers' Trade Union (CAPSA) the day before the union's general assembly.

&htab;359.&htab;In view of the seriousness of the allegations to which the Government had not replied, the Committee, at its May 1987 meeting, expressed its serious concern at the large number of arrests of trade union leaders and members. It deplored the fact that the Government had replied in respect of only a few of the allegations made against it and urged the Government to reply concerning all of the serious allegations presented by the complainant organisations.

&htab;360.&htab;Since then the Government has supplied no reply to the Committee's requests.

&htab;361.&htab;In a communication dated 23 October 1987, the International Confederation of Free Trade Unions stated that on 20 October 1987 the police used violence to prevent the holding of a union meeting of the National Union of Construction Workers, violently charging and injuring a large number of them who were transported urgently to assistance centres.

&htab;362.&htab;Before examining the substance of this case, the Committee regrets having to draw the Government's attention to the considerations it set out in its First Report [para. 31], namely that the purpose of the whole procedure that has been instituted is to ensure respect for trade union rights in law and in fact and that the Committee is convinced that while the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them.

&htab;363.&htab;In these circumstances, the Committee once again deplores the fact that the Government has not replied to the serious allegations made by the complainants, some presented as far back as two years ago, and that because of the time which has elapsed, the Committee is obliged to examine the case without being able to take the Government's observations or comments into account.

&htab;364.&htab;The Committee notes that the allegations in this case relate essentially to the arrest of trade unionists, the ban on May Day celebrations and the occupation of trade union premises to prevent the holding of union meetings.

&htab;365.&htab;Since the Government has not denied these allegations, the Committee can only conclude that the principles of freedom of association have been seriously infringed in these various incidents.

&htab;366.&htab;As regards the arrest of trade unionists whose names were supplied by the complainants, the Committee recalls that measures of preventive detention imply serious interference by the Government in trade union activities which can give rise to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period of time. Furthermore the Committee recalls that the arrest by the authorities of trade unionists against whom no charge is made involves restrictions on freedom of association. Consequently the Committee urges the Government to take steps to ensure that the authorities concerned are given appropriate instructions to eliminate the danger which arrest for trade union activities implies. [See 147th Report, Case No. 777 (India), para. 214, and Case No. 753 (Japan), para. 345.]

&htab;367.&htab;As regards the ban on the celebration of May Day and the acts of violence perpetrated by political groups against workers, including doctors on hospital premises where injured people were being treated, the Committee expresses its very deep concern with regard to such allegations. Since the Government has not refuted them, the Committee must insist on the importance of the principle according to which the right to organise public meetings and processions on the occasion of May Day constitutes an important aspect of trade union rights. [See in particular 204th Report, Case No. 962 (Turkey), para. 253]. Furthermore the Committee strongly condemns the acts of violence said to have been perpetrated on hospital premises against doctors who were treating the injured persons taken there after the confrontations on May Day.

&htab;368.&htab;As regards the attacks on trade union premises and the arrest of trade union leaders before the holding of union meetings, the Committee notes once again that the Government has not denied these allegations. It recalls that the arrest of trade union leaders with the aim of preventing the holding of a union meeting constitutes a serious violation of the exercise of trade union rights. [See 160th Report, Case No. 849 (Nicaragua), para. 480].

&htab;369.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee strongly regrets that the Government has not replied to the repeated requests for information made to it. It expresses its serious concern at the allegations concerning repression of the trade union movement in 1986 and 1987 and, in particular, the arrest of trade union activists and leaders, whose names have been supplied by the complainants, the ban on peaceful trade union demonstrations on May Day which were violently put down, and the interference in the affairs of trade union organisations and pressure brought to bear on them and on union members.

(b) The Committee recalls that a free and independent trade union movement cannot develop in an atmosphere of insecurity and fear.

(c) The Committee urges the Government to take measures to ensure that the authorities concerned are given appropriate instructions to eliminate the danger for trade union activities represented by such measures as the arrest of trade unionists, the banning of trade union demonstrations on May Day and of the holding of trade union meetings.

(d) The Committee requests the Government to take measures to guarantee respect for freedom of association in law and in fact, in accordance with the obligations arising from Conventions Nos. 87 and 98, ratified by Paraguay, and to keep it informed of these measures in particular to state whether judicial inquiries have been undertaken following the repression which took place on hospital premises on 3 May 1986, in order to determine who is responsible and to punish the guilty parties.

&htab;370.&htab;Complaints of violation of freedom of association have been presented by the following trade union organisations on the following dates: the Latin American Central of Workers (CLAT): 5 November 1986; the World Federation of Trade Unions (WFTU): 29 June 1987; the International Confederation of Free Trade Unions (ICFTU): 3 July 1987; and the Autonomous Confederation of Haitian Workers (CATH): 20 July 1985. The CLAT, the WFTU and the CATH have provided additional information in support of their complaints in communications dated 25 February, 6 July and 14 August 1987, respectively.

&htab;371.&htab;At its November 1987 meeting, the Committee noted that the observations requested on a number of occasions from the Government had not been received. In these circumstances, the Committee addressed an urgent appeal to the Government to transmit its observations as a matter of urgency and drew its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, it could present a report at its next meeting on the substance of this case even if the observations requested from the Government have not been received in time. Since then, the ILO has received no reply from the Government.

&htab;372.&htab;Haiti 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;373.&htab;In its communication of 5 November 1986, the CLAT states that a great many enterprises have decided to inflict reprisals on new trade union organisations. According to the CLAT, they dismissed the officials of each trade union as soon as they had been democratically elected by the workers. The complainant organisation states that about 200 trade union officials of the Haitian confederation affiliated to it, the CATH-CLAT, were dismissed by their enterprises only because they had accepted trade union office. A complaint has been lodged on each of these cases with the Ministry of Labour, which has so far agreed to act as mediator only in the case of those enterprises which are willing to pay the compensation due.

&htab;374.&htab;The CLAT specifies that many enterprises, including "Mariette Industries", have dismissed hundreds of workers without paying the statutory compensation for dismissal. CLAT missions have visited Haiti on several occasions since the change of government and have requested dialogue with government representatives, which, in the case of the Minister of Labour, never took place.

&htab;375.&htab;In its communication of 25 February 1987, the CLAT states that the Minister of Labour refused to take part in dialogue by cancelling a meeting with CLAT representatives which, by common consent, was to take place on 24 February 1987. The CLAT alleges that the Ministry of Labour has still not approved legal recognition of the National Federation of Agricultural Workers of Haiti (FENATAPA), which has been pending since the previous year and which was promised by the Minister in November 1986. The complainant organisation also refers to the dismissal of nearly all of its staff, and, in particular, of trade union officials and members by the "Jebsa" and "Performance Footwear" undertakings. In the case of the "Jebsa" enterprise, according to the CLAT, glaring injustices have taken place, and the workers demand that the lock-out be lifted in the enterprise and that the conditions of work and remuneration established by Haitian law be observed. The "Performance Footwear" enterprise, for its part, announced the closure of the premises it occupies, changed its name and took up activities in other premises under the name of another representative. In the CLAT's view, this measure not only runs counter to the legislation, but is aimed at destroying the trade union, which represents 80 per cent of the staff. The enterprise refused to take part in any dialogue, and the Ministry of Labour failed to take appropriate measures to seek solutions. According to the CLAT, these two situations are merely an example of what has become a habitual practice of Haitian employers, in glaring contradiction to the efforts being made to build and consolidate a genuinely democratic regime.

&htab;376.&htab;In its communication of 29 June 1987, the WFTU alleges that on 23 June the Government dissolved the Autonomous Confederation of Haitian Workers (CATH) and imprisoned three officials of this organisation, including its Secretary-General, Jean-Auguste Mesyeux. The WFTU specifies that these repressive measures followed a general two-day protest organised by the CATH to pressure the Government into improving working and living conditions of workers in the country.

&htab;377.&htab;Referring to the same case, the ICFTU explains in its communication of 3 July 1987 that, on 22 and 23 June, the CATH called a 48-hour general strike, presenting economic and social claims and demanding observance of the Constitution and civil rights. According to the ICFTU, the army invaded CATH headquarters at dawn on 22 June and carried out a thorough search. The premises were closed and are still occupied by the army. Four trade union officials were arrested and savagely beaten, and the CATH was dissolved by the provisional government junta.

&htab;378.&htab;The WFTU states in its communication of 6 July 1987 that the three CATH officials arrested are Jean-Auguste Mesyeux, Armand Pierre and Edouard Pierre.

&htab;379.&htab;The CATH provides further details on this case in its communication of 20 July 1987. It explains that, after the union called a general strike on 22 and 23 June 1987, the military authorities gave the order on 22 June to invade the premises of the Confederation, which they then pillaged, taking away a car, office equipment and US$1,800.

&htab;380.&htab;The CATH adds that the soldiers violently beat the officials who were in the trade union premises, then, without a warrant, took them away to the Dessalines barracks, where, for 15 days, according to the CATH, they were beaten, tortured and humiliated. In addition, on 23 June, the CATH was dissolved.

&htab;381.&htab;On 4 July, the lawyers of the CATH intervened with the court since, contrary to the provisions in force, the trade unionists detained had not been brought before a judge. On 6 July, the persons concerned were released on certain conditions.

&htab;382.&htab;In its communication of 14 August 1987, the CATH specifies that eight persons were arrested on 22 June. They were Jean-Auguste Mesyeux, Armand Pierre, Edouard Pierre, Jean-Baptiste Hatman, Jean-Claude Pierre-Louis, Idly Cameau, Patrice Dacius and Edmer Saint-Eloi. Since their release, these trade union officials and five other union officials have received various threats and have been entered on a government blacklist.

&htab;383.&htab;The CATH adds that an arson attempt was made on its premises on the night of 29 to 30 July. Lastly, it states that the equipment, vehicle and money taken away during the army attack on its premises have still not been returned.

&htab;384.&htab;Subsequently, the ILO has sent telegrams on several occasions to the Government requesting it to transmit its observations and comments on the outstanding allegations in this case. The Government has not to date responded to these requests. However, the Office was informed verbally by a Haitian trade union official passing through Geneva that the administrative dissolution of the CATH had been lifted. It was also informed of the release of several trade unionists whose arrest had been announced by the complainants.

&htab;385.&htab;Before examining the substance of the case, the Committee regrets that it must draw the Government's attention to the considerations it set out in its First Report (paragraph 31), namely that the purpose of the whole procedure set up is to promote respect for trade union rights in law and in fact; it is convinced that while 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 replies to the allegations brought against them.

&htab;386.&htab;In these circumstances, the Committee deplores the fact that the Government has not replied to the serious allegations made by the complainants, some of which date back to more than a year ago, and that it is obliged because of the time which has elapsed, to examine the case without being able to take into account any observations or comments from the Government.

&htab;387.&htab;The Committee points out that the allegations raised in this case mainly deal with anti-trade union reprisals inflicted by employers on workers seeking to conduct legitimate trade union activities, with the arrests of trade union activists and officials - named by the complainants - following a two-day strike in June 1987, with the dissolution by administrative authority of the Autonomous Confederation of Haitian Workers (CATH), with the occupation by violent means of the premises of this trade union confederation, and with the confiscation of the trade union material belonging to it.

&htab;388.&htab;In the absence of any reply on these allegations by the Government, the Committee can only conclude that there has been a serious infringement of the principles of freedom of association.

&htab;389.&htab;As concerns the anti-trade union reprisals, including dismissals and the alleged establishment of "blacklists" by employers which are said to have affected hundreds of workers merely because they wanted to set up trade union organisations or carry out legitimate trade union activities within several enterprises in Haiti, the Committee recalls that one of the basic principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination likely to infringe upon freedom of association in their employment. It also recalls that this protection is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [See 211th Report, Case No. 1033 (Jamaica), para. 303 and Case No. 1063 (Costa Rica), para. 616.].

&htab;390.&htab;The Committee therefore expresses its serious concern as regards this infringement of the principles of freedom of association and, as it has done on numerous occasions in similar cases, draws the Government's attention to the fact that the establishment of "blacklists" of trade union officials seriously endangers the free exercise of trade union rights, and it is incumbent on the Government to take measures so as to ensure the full respect for these principles.

&htab;391.&htab;As regards the dissolution by administrative authority of the CATH, the Committee emphasises the importance it attaches to Article 4 of Convention No. 87 ratified by Haiti, according to which workers' and employers' organisations should not be subject to suspension or dissolution by administrative authority. In the Committee's opinion, dissolution by virtue of administrative powers does not ensure the right of defence which normal judicial procedure alone can guarantee and which the Committee considers essential.

&htab;392.&htab;Consequently, the Committee is of the opinion that dissolution by administrative authority constitutes a serious violation of the rights of workers' organisations contrary to Convention No. 87.

&htab;393.&htab;The Committee has been informed that the dissolution of the CATH has been lifted. It nevertheless calls upon the Government to ensure that such practices are not repeated in the future.

&htab;394.&htab;As regards the arrests and imprisonment of the CATH leaders and activists after a general two-day strike on 22 and 23 June 1985, a strike called by the CATH to pressure, according to the complainants, the Government into improving working and living conditions of workers in the country, the Committee recalls 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. In the Committee's opinion, the authorities should not have recourse to measures of imprisonment for the mere fact of organising or participating in a peaceful strike [See 236th Report, Case No. 1213 (Greece), para. 46.].

&htab;395.&htab;Consequently, the Committee requests the Government to take the necessary measures to ensure that the competent authorities are given appropriate instructions so as to eliminate the danger to trade union activities that such arrests involve [See 147th Report, Case No. 777 (India), para. 214.].

&htab;396.&htab;As regards the allegations concerning the ill-treatment and other punitive measures taken against the Haitian trade union activists and officials arrested after the above-mentioned general strike, the Committee has stressed in similar cases in the past the importance it attaches to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.

&htab;397.&htab;Consequently, the Committee considers that the Governments should give precise instructions to ensure that no detainee is subjected to such treatment and apply effective sanctions where cases of ill-treatment are proven.

&htab;398.&htab;Concerning the allegation that the premises of the CATH were violently occupied and that trade union equipment, including a sum of money, was confiscated, the Committee recalls that the inviolability of trade union premises implies that the public authorities may not enter these premises without a judicial warrant authorising them to do so. Indeed, it is stated in the resolution on trade union rights and their relation to civil liberties adopted by the International Labour Conference at its 54th Session (1970), that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights.

&htab;399.&htab;The Committee also considers that measures of this nature involving the occupation of trade union premises and the confiscation of trade union property constitute a serious interference on the part of the Government in trade union activities and, as such, might give rise to criticism, unless they are accompanied by adequate judicial safeguards applied within a reasonable period. The Committee therefore urges the Government to take the measures necessary so that the authorities concerned receive instructions to ensure respect for the law in this regard and to ensure that the union money allegedly taken away during the army attack be returned to the CATH.

&htab;400.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee greatly deplores that the Government has not replied to the serious allegations submitted by the complainants in the present case concerning the repression to which the trade union movement in Haiti is being subjected; these allegations refer to hundreds of dismissals on the ground of trade union activities, the establishment of blacklists, the dissolution by administrative authority of the Autonomous Confederation of Haitian Workers (CATH) notwithstanding the fact that it has resumed its activities since the allegation was made, the arrest and detention of trade union officials and activists, the ill-treatment inflicted on these officials when detained and the violent occupation of the trade union premises and the confiscation of material belonging to the CATH.

(b) The Committee requests the Government to ensure that the material and money of the CATH, which were confiscated during the attack on the headquarters of the Confederation, be returned to that Confederation. (c) The Committee draws the Government's attention to the fact that a free and independent trade union movement cannot develop in a climate of violence and uncertainty.

(d) The Committee urges the Government to take severe measures to eliminate the danger which such reprehensible anti-union practices imply for trade union activities.

(e) The Committee also urges the Government to take the measures necessary to safeguard freedom of association and civil liberties in Haiti, in accordance with the obligations this country undertook in ratifying Conventions Nos. 87 and 98. It asks it in particular to endeavour to bring about the reinstatement of the many workers dismissed for having wanted to conduct legitimate trade union activities, and to indicate whether judicial inquiries have been instigated into the ill-treatment inflicted on the imprisoned trade unionists, the occupation of the CATH premises and the confiscations carried out on the premises in question. The Committee requests the Government to supply information in this connection.

&htab;401.&htab;The complaint is contained in a letter from the Independent Trade Union Confederation of Public Employees (CSIF) of 16 March 1987. The organisation sent further information in a letter dated 30 April 1987. The Government supplied its observations in communications dated 11 June 1987 and 14 January 1988.

&htab;402.&htab;Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

&htab;403.&htab;The CSIF alleges that Royal Decree No. 1311/1986 of 13 June setting standards for the conduct of elections to representative bodies of workers in the undertaking, allows non-established public employees in public administrations to elect their trade union representatives but that public employees do not have this right. The complainant organisation considers that this is discrimination in favour of the government trade union, the General Union of Workers (UGT) with the aim of setting up a new unified trade union within the Spanish State - which is contrary to Convention No. 151.

&htab;404.&htab;The CSIF also alleges that the Ministry of Defence has unilaterally decided that civilians working for its agencies should be given the status of military personnel, which means that they cannot exercise their trade union rights in accordance with the provisions of Act No. 11/1985 on freedom of association.

&htab;405.&htab;Referring to the promulgation of Royal Decree No. 1671 of 1 August 1986 (to approve the regulations issued under Act No. 4 of 8 January 1986 respecting the transfer of accumulated trade union assets), the CSIF states that its applications for the transfer of property were rejected since, as no general trade union elections had taken place in the public administrations, all applications concerning such transfers had been turned down.

&htab;406.&htab;The CSIF alleges, furthermore, that its representativity, which the Spanish Government itself had recognised on the basis of the electoral results obtained so far, is not recognised in practice by the various ministerial bodies and governments of the autonomous communities. The CSIF gives the following concrete examples:

- Refusal by the Ministry of Health and Consumption to allow the CSIF to be officially represented in negotiations between the National Institute for Health (a body independent of the Ministry) and the trade union confederations, obliging the CSIF to turn to the low courts. Refusal by the same Ministry to allow the CSIF to take part in joint meetings at the level of the provinces in connection with the integration of the university hospitals within the social security health network.

- Refusal by the Government Council of Andalucia to recognise the representativity of the CSIF for the purposes of negotiating matters concerning the public service in Andalucia.

- Refusal by the Office of the President of the Community of Madrid to allow time off for trade union business in accordance with the agreements signed. The CSIF encloses an order from the President's Office of the said Community under which such leave for trade union purposes should be granted to two CSIF representatives for periods of one month and one-and-a-half months respectively.

- Refusal to allow the CSIF to be represented on the State School Board, the organisation being given only one seat out of 50, which obliged it to turn to the courts of law. The CSIF disputes the three orders of the Ministry of Education and Science dated 23 October 1986 appointing representatives to the State School Board from the group of teachers, from the staff of the administration and services of teaching establishments, and from the trade union confederations. - Refusal by the General Directorate for Traffic to allow the CSIF to take part in negotiations in the traffic sector.

&htab;407.&htab;Finally, the letter from the CSIF states that it is common practice for obstacles to be placed in the way of its trade union representatives and it quotes the following situations:

- Failure to fulfil agreements concerning time off for trade union purposes and obstructionism vis-à-vis Mr. Jiménez Blázquez, CSIF president in the province of Cantabria. When Mr. Blázquez applied to the Ministry of Education and Science for time off for trade union purposes, he was put on secondment, whereupon the Provincial Director of Education and Science informed him that if he wished to remain on the School Board of his workplace he would have to give up the secondment.

- Obstructionism and persecution of the CSIF representative at the National Institute for Occupational Safety and Health, Mr. Rufino Jiménez Peña, who was transferred after having been elected as a trade union leader and who, since then, is the only employee in the Institute assigned to "minimum duties" (even though the Institute is not overstaffed and new people are constantly being taken on). Nor is Mr. Jiménez Peña given the necessary facilities (a place where he can speak with members in private, his own telephone and a lock-up desk).

- Obstructionism and persecution of the CSIF representative at the Ministry of Education and Science, Mr. Julio Follana Rodríguez, who, having been granted time off for trade union purposes entailing being completely dispensed from work, was ordered to vacate his office.

&htab;408.&htab;The Government states that the promulgation of Royal Decree No. 1311/1986 in no way involves discrimination, as it merely implements the provisions of the Workers' Statute and the Act on freedom of association as regards the conduct of elections covering non-established employees. The purpose of the Decree is simply to facilitate the holding of such elections both in private enterprise and in the public administration, in the latter case only for the non-established employees; it does not apply to public employees in the public administration, who are governed by their own statutory regulations under the Constitution (Articles 103.3 and 149.1.18). Article 103.3 of the Constitution, on the subject of the public employees' statute, reproduces the reference in Article 28.1 to the special characteristics of the right of public employees to join trade unions. Workers and employees in the public service constitute two quite separate groups and are covered by different laws under the Constitution. As stated by the Constitutional Tribunal in Ruling No. 98/1985, constitutional order is not undermined by the fact that public employees have "specific representative bodies and their own procedures for consultation and bargaining". In view of the foregoing it would be difficult to combine elections to bodies representing workers in the undertaking, including those employed by the public administration as workers, with elections - which are not in fact trade union elections - to bodies representing public employees. In short, the fact that the two types of election are held separately and the existence of separate representative bodies are no more than evidence of the necessary existence in Spain of separate legal systems for public employees and non-established workers. Furthermore, the constitutional mandate is thereby fully complied with. In this connection the Government mentions the recent promulgation of Act No. 9/1987 of 12 June on representative bodies, determination of conditions of work and participation by personnel in the service of public administrations. This Act, together with the convening of elections to the representative bodies in the public administration, carried out on orders from the Ministry for the Public Administrations dated 23 July 1987, is a good example of the desire of the Spanish authorities faithfully to carry out their mandate under the Constitution in respect of freedom of association. Lastly, as regards the statements in the complaint concerning alleged intentions to set up new trade unions within the Spanish State, these are mere value judgements made by the CSIF with no arguments to back them up.

&htab;409.&htab;As regards the allegations of discrimination in respect of trade union assets, the Government states that there has been no discrimination whatsoever in the transfer of accumulated trade union assets. These assets accumulated from the "trade union contribution" existing under the former "vertical trade union system" which was not paid over when the State was the employer. Consequently, the CSIF can hardly claim rights to assets that its members did nothing to constitute. Confirmation of the Spanish Government's correct action in this respect can be seen in a decision of the ILO's Committee on Freedom of Association itself, which stated that the criteria used in the distribution of trade union assets were the right ones. This principle of non-discrimination can be seen in section 6 of the Act respecting freedom of association which provides for the temporary transfer of the use of public property by organisations considered to be most representative trade unions, including the unions of public employees that might come within this definition.

&htab;410.&htab;As regards the alleged refusal by the Ministry of Health and Consumption to allow the CSIF to be officially represented in National Institute for Health negotiations, the Government states that, in a ruling dated 3 June 1987, the National Court dismissed the case brought by the CSIF, which was required to pay the costs, on the grounds that it had not given proof of its representativity in the specific area of the health sector of the Social Security Department. The ruling states that the fact that an organisation is most representative throughout the whole of the public service does not necessarily mean that it is the most representative union in a specific sector of the administration, such as the aforementioned health sector of the Social Security Department. The CSIF appealed against this ruling but the appeal was deemed admissible on one point only.

&htab;411.&htab;With regard to the alleged refusal by the Ministry of Health and Consumption to allow the CSIF to take part in discussions on the integration of the university hospitals, the Government repeats that the Confederation was not the most representative union in the health sector of the Social Security Department and that it had not taken part in the previous negotiations. Once again the Confederation appealed to the National Court against the action of the Government. The ruling is not yet known but it should be pointed out that, as can be seen from the above, the substance of the case is the same as in the preceding paragraph.

&htab;412.&htab;As regards the allegation that the Government Council of Andalucia refused to recognise the representativity of the CSIF, the Government states that an agreement was reached on this point between the Government Council of Andalucia and the CSIF on 30 July 1987, which implies a return to normal of relations between the autonomous administration and the said trade union organisation (the Government has enclosed a photocopy of the said agreement).

&htab;413.&htab;As regards the alleged refusal by the President's Office of the Community of Madrid to allow two CSIF representatives time off work for trade union purposes, the Government states that although the agreement of 11 June 1985 betwen the State Administration and various trade union confederations does not impose any obligation on the Autonomous Community of Madrid (which, as its name implies, is autonomous as regards the State Administration), the said Autonomous Community does grant time off to public employees working for it and belonging to the CSIF, as is demonstrated by the decision of the Adviser to the President's Office dated 12 November 1986 and the decisions of the Director-General of the Public Service of the Community of Madrid (the Government encloses photocopies of these decisions).

&htab;414.&htab;As regards the allegation concerning the membership of the State School Board, the Government states that the CSIF has challenged three Ministerial Orders on this issued by the Ministry of Education and Science on 23 October 1986 in accordance with the terms of sections 9.1 and 10.1 of Royal Decree No. 2378/1985 of 11 December regulating the State School Board, which was set up by Act No. 8/1985 of 3 July concerning the right to education. The first of these Orders appoints 12 titular members, and the same number of substitute members, representing groups of teachers in public education and a further eight in private education. In making these appointments, the only requirement the Ministry was obliged to observe, and which it took into account, was that the representatives of the teachers' group had to be nominated by trade union confederations or organisations which, in accordance with the legislation in force, were considered to be most representative (section 9(1)(a) of the above-mentioned Royal Decree). In this respect it should be remembered that the status of "most representative union" is established in Act No. 11/1985 of 2 August on freedom of association, section 6.2 of which provides that the most representative unions are those which obtain a minimum percentage of votes in elections at the relevant level; in this particular case it is the national level that is involved, given the coverage of the State School Board. As regards the appointment of representatives of the first group of teachers (i.e. in public education), the Ministry of Education and Science was not able to use this criterion directly since trade union elections have not yet been held in the education sector of the public administration. Consequently, it referred to the results of the trade union elections at the national, general (non-public servant) level. These elections clearly show the most representative trade union bodies to be, firstly the Workers' Committees (CC.OO.) and General Union of Workers (UGT), followed by the ELA-STV and "Intersindical Galega". Taking these results into account and wishing to promote the maximum participation and representation of groups on the advisory body, that is the State School Board, the Ministry of Education and Science deemed it advisable to give some representation to other trade union organisations with which it had contacts and held negotiations on various subjects of interest within the teaching sphere of the public service. This is why it also offered a representative seat, in the teachers' group, to each of the following organisations: ANPE, CSIF, UCSTE and FESPE. As regards representatives of the groups of teachers in private education, seats were offered to the trade union organisations which had come out as most representative in this sphere, namely: UGT, USO, FSIE, UTEP (a coalition of the CC.OO. and UCSTE) and FESITE-USO.

&htab;415.&htab;As regards the second Ministerial Order that was contested, concerning the appointment of members of the State School Board for the group of personnel of the administration and services of teaching establishments, the Government states that it was obliged to grant representation to the trade union groups established both in the sector of administrative staff and in that of service personnel, in both public and private teaching establishments, since the order covers both categories. This double condition and guarantee of representativity was met only by the General Union of Workers (UGT) and the Workers' Committees (CC.OO.) and the Ministry abided by this criterion. It should not be forgotten in this connection that the CSIF, although enjoying some support in the sector of public teaching establishments, does not have the same support as regards the private schools, and moreover, even if it is established in the sector of administrative staff of public teaching establishments, is not so established as regards the service personnel of these same public teaching establishments.

&htab;416.&htab;As regards the third Ministerial Order, concerning membership of the State School Board representing the trade union confederations group, the Government states that the Ministry of Education and Science, in appointing representatives of this group, considered that the term "trade union confederations" referred to trade union organisations at the national (and global as regards their trade union activities) level which, consequently, were not restricted to the education sector. This being the case, and in view of the figures of the recent elections in which the General Union of Workers (UGT) and the Workers' Committees (CC.OO.) came out far ahead, the Ministry divided the representative seats between these two organisations on a fair and proportional basis since they were clearly the most representative.

&htab;417.&htab;Furthermore, the Government states that the General Directorate of Traffic has not denied the CSIF the possibility of setting up trade union sections, holding meetings, collecting contributions and distributing trade union information; it also receives the information put out by this union. Noticeboards have always been available to the Confederation at all times and when it has asked for trade union premises it has obtained them. Thus it should be emphasised that the Confederation has held information meetings on the premises of the above-mentioned Directorate without any particular requirements having to be met as regards authorisation. Finally, it should be pointed out that the General Directorate of Traffic has an internal agreement with the trade union section of the UGT, to which the CC.OO. subseqently adhered, for holding periodical meetings for information and the exchange of viewpoints on subjects of mutual interest and that, although the CSIF expressed its wish to adhere to this agreement, it has at no time indicated which of the members of its trade union sections would attend the meetings. Consequently, since there was no representative on the spot with whom to hold such meetings, the Directorate did not convene the CSIF until it was informed that there was a trade union section in the central traffic services, at which time the two accredited members of the section were invited to the most recent meeting on 1 October 1987. Both members accepted.

&htab;418.&htab;As regards the claim made by the CSIF that Mr. José Jiménez Blázquez, a teacher at the Santa Clara Secondary School of Santander, who was elected to the school board of this establishment (an eminently educational body), is still an active member of the board, despite having been granted time off for the exercise of trade union activities, which dispenses him from going to work and giving classes, the Government gives the position of the teaching administration. It believes that if Mr. Jiménez Blázquez wished to continue to be a member of the school board and take part in the teachers' meetings he had to forego the time off for trade union activities and take part in the teaching work; this is because if a teacher is chosen by his colleagues to be a member of a representative body of a teaching establishment, it is essential for him to be in constant contact with the whole educational community of the establishment, i.e. the other teachers, the pupils and their parents. Either Mr. Jiménez Blázquez wanted to continue devoting himself to trade union activities, being fully dispensed from going to work, or he chose to resume his teaching work and the rights inherent in his status as an active member of the school board and the teaching staff.

&htab;419.&htab;As regards the allegations of discrimination against Mr. Rufino Jimeno Peña by the National Institute for Occupational Safety and Health, the Government states that the job changes alleged by him were not based on his having been elected as a trade union leader but on structural reorganisation within the Institute. The list of posts at the National Institute for Occupational Safety and Health, published in the Official Gazette of 14 March 1986, includes 439 "minimum duties" jobs on different scales, including 65 at level 11, like that presently held by Mr. Jimeno. This list was drawn up, in accordance with the regulations, regardless of who would eventually occupy these posts. The latter were filled on the basis of the qualifications of the applicants for each specific job. The "minimum duties" posts consequently have nothing to do with personal situations, as alleged by Mr. Jimeno, but correspond to purely structural and even budgetary criteria. The positions above the "minimum duties" level were established in accordance with the provisions of section 20 of Act No. 30/1984 of 2 August on the reform of the public service. The posts were filled, consequently, in one of two ways: through competitions (in which Mr. Jimeno did not take part) or by free appointment. All the vacancies that were announced in the latter case were published in the Official Gazette. Under this latter system applicants send their curriculum vitae together with documents in support of their application. A committee appointed by the Directorate of the Institute evaluates the applications in the light of the post to be filled, and chooses the applicant who, by virtue of his training, qualifications and professional experience (as demonstrated by work and publications) meets the requirements for the job; in this way some of the employees chosen are members of the CSIF. It must not be forgotten that the National Institute for Occupational Safety and Health, by its very nature, is designed solely to prevent occupational hazards and this multidisciplinary task is undertaken by specialists in such areas as engineering, chemistry, medicine, psychology, agronomy, etc., who co-operate to raise the level of safety and health and improve conditions of work from the health point of view. This work is backed up by other activities of a mainly administrative nature in the area of personnel management and administration. Mr. Jimeno, who has a degree in Philosophy, as can be seen from his personal file, has no experience in the field of preventing occupational hazards or improving conditions of work, nor even as regards personnel management or administration. This makes it easy to understand that if so far he has not reached a senior position within the Institute, this is not because of trade union discrimination, but because there are better qualified specialists to pursue the aims of the National Institute of Occupational Safety and Health. The management of this Institute has, on various occasions, sought to entrust Mr. Jimeno with specific duties but has come up against the difficulty, described by the heads of the relevant sections, of his lack of specific training for working in their departments. On other occasions the duties that might have been entrusted to Mr. Jimeno would have entailed a downgrading since they corresponded to lower-grade employees.

&htab;420.&htab;As regards the trade union activities of Mr. Jimeno and the CSIF the Government states that for over ten years a furnished office has been available to trade union sections and occupational associations, for their exclusive use, with no limitations whatsoever. Since then the office has been used by trade union representatives and members, including Mr. Jimeno's organisation, without any problems or complaints.

&htab;421.&htab;It is true that Mr. Jimeno approached the management of the Institute, asking for an office to himself with an outside telephone line, a soundproofed door and his own set of keys. This request had to be turned down by the management, just as it would refuse any similar request from any other employee regardless of which union he belonged to. Lack of space prevents this type of request being granted and the use of outside telephone lines is reserved for posts which, by their nature, makes this essential. Nevertheless, and contrary to what is stated by Mr. Jimeno, he actually enjoyed considerable personal independence. It must be added, lastly, that the CSIF takes part in the work of all the committees within the Institute in question and that it has its own notice-board.

&htab;422.&htab;As regards the allegation that the Director-General of Personnel and Services of the Ministry of Education and Science impeded the trade union activities of Mr. Julio Follana Rodríguez, by ordering him, although he had been given leave from work to undertake trade union activities, to give up the office he was occupying, the Government states that the Administration's position is that it needed the office for the employee who was to replace Mr. Follana. It should not be forgotten that at the Ministry's main office (34 Alcalá Street) there is a trade union office that may be used by union officials.

&htab;423.&htab;The Committee notes the explanations provided by the Government concerning the elections to representative bodies in the State Administration, the transfer of accumulated trade union assets, the exclusion of the CSIF from negotiations in the health sphere, leave for trade union activities in the Community of Madrid and the allegations of obstructionism on trade union grounds in respect of Mr. Jiménez Blázquez, Mr. Rufino Jimeno and Mr. Julio Follana.

&htab;424.&htab;The Committee observes that the questions raised by the complainant organisation as regards the attitude of the Government Council of Andalucia and the General Directorate of Traffic towards the CSIF may be considered to have been resolved by, respectively, the agreement between the CSIF and the Government Council of Andalucia, dated 30 July 1987, and the invitation extended to the CSIF by the General Directorate of Traffic to take part in the meetings for information and exchanges of views in which other confederations participate.

&htab;425.&htab;As regards the membership of the State School Board on which the CSIF maintains that it was given only one seat out of 50, the Committee notes that the Government in its reply states that in one of the groups making up the State School Board it was not possible to use the criterion of "most representative union" at state level as regards public education since, at the time the Board was established, trade union elections had not yet been held in the education section of the public administration. The Committee has noted that elections of trade union delegates in the public administration were held recently and expresses the hope that the outcome of these elections will be reflected in the membership of the State School Board. Furthermore, the Committee notes that as regards another of the groups making up the Board, i.e. the trade union confederation group, the Ministry of Education and Science, in appointing representatives for this group, has borne in mind the fact that the term "trade union confederations" refers to trade union organisations at the national level. The Committee expresses reservations as regards the application of this criterion in so far as it allows for organisations which are broadly representative at the national level in the sphere of education but which do not operate in all sectors to be excluded from the group of representatives of trade union confederations on the State School Board. The Committee, however, does not have detailed information on the representativity of the CSIF in the teaching sector nor on the outcome of the recent trade union elections in the public administration; consequently it is not in a position to give its opinion on the question of the CSIF's participation in the trade union confederation group of the State School Board. The Committee trusts that in future the views it has expressed will be taken into account if the hypotheses considered arise.

&htab;426.&htab;Lastly, the Committee requests the Government to reply to the allegation that the Ministry of Defence has unilaterally given the status of military personnel to civilians working for it who, therefore, cannot exercise trade union rights in accordance with Act No. 11/1985 on freedom of association.

&htab;427.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take account in future of the criteria concerning representativity for membership of the trade union confederation group of the State School Board, namely that majority organisations or organisations that are largely representative at the national level in the education sector should not be excluded. (b) The Committee requests the Government to reply to the allegation that the Ministry of Defence unilaterally granted the status of military personnel to civilians working for it, who are not therefore able to exercise trade union rights in accordance with Act No. 11/1985 on freedom of association.

&htab;428.&htab;The complaint is contained in communications dated 25 March and 14 May 1987 from the Single National Trade Union of Workers in the Clothing and Allied Industries (SUA-VESTIMENTA), the Inter-Union Workers' Assembly and the National Workers' Convention (PIT-CNT). SUA-VESTIMENTA submitted new allegations in communications dated 3 August and 2 September 1987. The World Federation of Trade Unions (WFTU) supported the complaint in a communication dated 9 September 1987. The Government sent certain observations in communications dated 8 and 23 October 1987.

&htab;429.&htab;In its communications the Government stated that it would be sending the report of a committee of inquiry set up to determine the truth of the allegations brought before the Committee on Freedom of Association. Nevertheless, the Government requested the Committee to examine the aspects of the complaint concerning the right to strike of public officials and state employees contained in the communication from the complainants of 14 May 1987.

&htab;430.&htab;Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;431.&htab;The complainant organisations allege that Act No. 13720 of 16 December 1968, which in their opinion is unconstitutional, infringes the right to strike under section 4 by establishing that "in the case of public services, including those administered by private individuals ... the Committee (at present the Ministry of Labour and Social Security) may indicate, after stating the grounds for its decision, ... those essential services which must be maintained in operation by emergency shifts and whose interruption would determine the unlawful nature of a strike"; the Act goes on to stipulate that "in the case of interruptions in essential services, the public authority may take the necessary steps to maintain these services, including having recourse to the use of the equipment and the hiring of outside workers that are indispensable to maintain the services in operation, on the understanding that the relevant legal sanctions continue to be applicable to the staff concerned". The complainants point out that the provision is so worded that all public services might be considered essential, in so far as the text neither defines the type of activity concerned nor requires any justification for its being deemed to be essential.

&htab;432.&htab;The complainant organisations add that under Act No. 13720, and contrary to the principles of the ILO, the following have been declared as essential services: services carried out by the Social Security Directorate (Ministerial Resolution of 28.5.86); services carried out by the National Customs Directorate (Ministerial Resolution of 29.5.86); loading and unloading and similar activities (Ministerial Resolution of 25.6.86); and services carried out by the National Fuel, Alcohol and Portland Cement Administration (ANCAP) (Ministerial Resolution of 3.12.86).

&htab;433.&htab;As regards the declaration of the services carried out by the Social Security Directorate as essential, the complainant organisations deny that these are essential in the strict sense of the term and point out that, apart from the fact that at the time the dispute had reached a point when agreement between the parties seemed highly unlikely, the Ministry of Labour's intention in consulting the PIT-CNT had been to reach consensus on its decision to declare the service essential. As to maintaining the health service in operation, the trade union organisations have their own procedure in the event of a dispute and organise shifts to keep the service going so as not to endanger the population. Similarly, as part of its contingency programme, the trade union organisation had provided for the payment of social security benefits. Furthermore, the Ministerial Resolution states that "the running of essential services requires the functioning of other indispensable support services, and these are therefore likewise essential". Thus, related services are also declared to be essential.

&htab;434.&htab;The complainant organisations point out that, as regards social security, the Government's note calling for the consultation had already classified certain services as essential in advance. Despite this serious fault on the Government's part, the trade union organisation to which the workers concerned belong agreed to participate in the dialogue (26.5.86). The Government announced publicly that "it would not enter into discussions with unofficial groups of workers" and that "it would not give in to their demands"; it also publicly refused mediation by the Committee on Labour Legislation of the Chamber of Deputies. The fact that the entire staff of the Raigon Holiday Camp, including 26 caretakers, nine administrators and 18 members of the personnel office, were listed as performing essential services shows clearly how the Government has deliberately misinterpreted and distorted the situation in the social security sector.

&htab;435.&htab;The complainant organisations further state that, in the case of ANCAP, the staff on the boats servicing oil-tankers decking at the mooring buoy were listed as performing essential services, even though no tanker was due two months; even the painting of the mooring buoy was declared to be an essential service. ANCAP also attempted to oblige staff entering the factory to sign an undertaking not to resort to trade union action; 13 out of the 17 trade union officials were thus denied entry during the dispute. Thirty workers were arrested for having obeyed strike orders. Once the ANCAP dispute had ended, all kinds of discriminatory measures were taken against the strikers, including sanctions, legal proceedings and transfers. The army was called in to fight the strike and defend the Government's position. The complainants enclose copies of three decisions by the ANCAP Board dated 18 December 1986, one penalising officials who took part in the dispute, a second expressing approval of those officials who had not taken part in the dispute, and a third approving the payment of overtime to these officials, and of a decision of 3 December 1986 summoning all the officials who had taken part in the dispute and suspending those who did not come forward.

&htab;436.&htab;The complainants conclude by stating that Act No. 13720 is an attempt to regulate strikes by administrative orders, in other words to restrict a basic right and an essential public freedom by orders emanating from the public authority - which leaves both the individual citizen and the organisations that are entitled to strike without any defence. The only way to contest administrative orders stipulating the essential nature of services is through the ordinary appeals procedure, but this does not have the effect of suspending the order and is therefore useless as a defence; besides, the time-limits within which the State has to rule on an appeal are very broad, which far from offering any kind of a guarantee is purely and simply a denial of justice.

&htab;437.&htab;The Government states that section 4 of Act No. 13720 does not empower the Ministry of Labour and Social Security to ban public officials from striking but only to restrict its exercise by determining, if need be, which essential services must be maintained by emergency shifts. In the opinion of this Ministry, its restrictions concern essential services in the strict sense of the term (i.e. whose interruption would endanger the life, personal safety or health of the whole or part of the population), as well as those services which might, by extension, become essential because of the extent of the consequences of their interruption or because of the particular circumstances in each case, in so far as they would endanger the normal living conditions of the population. The Government develops a number of arguments to show that section 4 of Act No. 13720 is constitutional. It observes that no action of the type provided for in the Constitution has been brought to have section 4 of the Act declared unconstitutional and that the complainants have not made use of the administrative and judicial appeals procedures provided for in Uruguayan legislation against the ministerial decisions imposing a minimum service in the four above-mentioned cases (payment of social security benefits, customs, port loading and unloading services, and fuel and alcohol supplies). The Government states that it agrees with the Committee's criteria with respect to the conditions for organising a minimum service and the participation of workers' organisations in these arrangements. The Government states that each time the Ministry of Labour and Social Security has had to make use of the power conferred upon it by the law to establish a minimum service, it has given orders (though in vain because the complainant organisations consider that it is the prerogative of the workers' organisations themselves to organise minimum services through their own procedures) for the workers' representatives to be convened in order to determine the essential services that have to be maintained by emergency shifts as long as the work stoppages last.

&htab;438.&htab;With regard to the General Social Security Directorate (now known as the Social Welfare Bank), the Government states that, as an interruption in the payment of pensions and other social security benefits endangers the normal living conditions of a large sector of the population and its subsistence level, the Ministry of Labour and Social Security requested the Director-General of the Social Security Directorate on 19 May 1986 to convene the workers' representatives to determine the services which should be maintained by emergency shifts to safeguard the payment of pensions and other social security benefits and health assistance. As the workers' representatives refused to take part, the Ministry of Labour and Social Security took a decision on 28 May 1986, in accordance with the provisions of section 4 of Act No. 13720, in which it declared the essential public services to be maintained by emergency shifts so as to guarantee the payment of old-age pensions, annuities, unemployment benefits and other cash benefits paid directly to the social security beneficiaries and to provide hospital services and medical care. The emergency shifts which, in view of the trade union organisation's refusal to co-operate, were decided upon unilaterally by the General Social Security Directorate, consisted of only 1,680 officials, a mere 27 per cent of the total staff. Furthermore, only minor disciplinary sanctions were imposed on officials who had refused to participate in the emergency shifts at the Directorate's administrative headquarters.

&htab;439.&htab;As regards the National Customs Directorate, customs activities are an integral part of the State's financial police force, and as an essential responsibility of the State, can be directly exercised only by the State itself. The National Customs Directorate includes all the customs services throughout the country and its officials belong to a category of civil servants working for an administration with respect to which the Committee has acknowledged the possibility of a ban on strike action. Nevertheless, when the dispute caused by the National Customs Directorate officials arose, the Ministry of Labour and Social Security, in the beginning, considered it inappropriate to ban the strike and decided to set up a minimum service to guarantee the dispatch of all perishable goods and raw materials, as well as manufactured goods, the lack or shortage of which would endanger the normal living conditions of the population. To this end and in accordance with the general conditions governing the application of section 4 of Act No. 13720, established by the Ministry of Labour and Social Security, the workers' representatives were convened on 28 May 1986 to determine the services to be maintained by emergency shifts. The Association of Customs Officials replied in a note of the same date that it was not its responsibility to define the concept of essential services in this case and that the matter should be determined by the legislative or constitutional bodies concerned. In the face of this refusal, the Ministry of Labour and Social Security made use of the powers conferred upon it by section 4 of Act No. 13720 and stated, in a decision dated 29 May 1986, that "the processing of the usual formalities and documents concerning the import, export and transit of perishable goods, raw materials and manufactured or semi-manufactured goods, the lack or shortage of which might run the risk of causing a collective disaster for the society as a whole or endanger the life, personal safety and health of part or all of the population" must be guaranteed as a minimum service. No sanctions were imposed during this dispute.

&htab;440.&htab;As regards loading and unloading in ports, the Government points out that these services are provided by private workers registered with the labour exchange and that it is the responsibility of the National Docks Administration (ANSE) to administer and control these lists. The collective dispute which gave rise to the resolution cited in the present complaint and which resulted in the strike of the dockers brought all harbour services to a halt. Nevertheless, the Ministry of Labour and Social Security bore in mind that the Committee on Freedom of Association has stressed on several occasions that in normal circumstances general dock work does not appear to be essential in the strict sense of the term in so far as its interruption would not endanger the life, personal safety or health of the whole or part of the population. However, it realised that, with the extension and duration of the strike, the total stoppage of dock work might bring about a crisis in which the normal living conditions of the population might be endangered. This was particularly the case for the export of perishable goods currently under way, as well as for the import and export of raw materials the lack or shortage of which might run the risk of causing a collective disaster for the society as a whole. In these circumstances, the Ministry of Labour and Social Security considered that it was lawful, in both cases, to set up a minimum service limited exclusively to the operations that were necessary for the normal living conditions of the population not to be endangered. It is for this reason that it convened the workers' organisations to decide upon the minimum services which should be guaranteed by emergency shifts. Given the refusal of the workers' representatives, who made the acceptance of their basic claims a condition for their participation, the Ministry of Labour and Social Security, by a resolution of 25 June 1986, decided that loading and unloading services and other directly related activities having to do with perishable goods, raw materials and manufactured and semi-manufactured goods the lack or shortage of which might run the risk of causing a collective disaster for all or part of the society and endanger the life, personal safety and health of the whole or part of the population, should be maintained in operation by emergency shifts. In fact, this resolution was not implemented because on the following day, 26 June 1986, the dispute ended and an agreement was signed, with the participation of the Ministry of Labour and Social Security itself, stipulating that no sanctions would be imposed.

&htab;441.&htab;As regards the services provided by the National Fuel, Alcohol and Portland Cement Administration (ANCAP), the Government states that Uruguay does not produce petroleum and that all its needs are met by importing crude oil which is refined within the country. All means of transport, with the sole exception of a small trolleybus service in the capital, depend upon an adequate supply of fuel. There are no electric railways and Uruguay does not produce any natural gas. Only a very small area of Montevideo has a mains gas system. In the other areas, the population uses propane gas. ANCAP, a state enterprise which plays a key role in the country's economy, holds the legal monopoly for importing and refining crude oil and petroleum by-products. This monopoly also extends to the import of all liquid, semi-liquid and gaseous fuels, whatever their state and composition. As a result, all fuels derived from petroleum used in the country are refined or imported by ANCAP. Private companies in Uruguay only distribute to the public the fuels imported or refined by ANCAP, which is the sole supplier. ANCAP also holds the legal monopoly for the import, manufacture and marketing of alcohols.

&htab;442.&htab;According to the Government, when the ANCAP officials announced their dispute, the one and only petrol refinery in the country had already been out of operation for several days for technical reasons. This stoppage, which is necessary from time to time, had been planned in advance and the necessary amount of fuel had been stored so that supplies could be maintained during the interruption. Obviously, these supplies were limited by the available storage capacity and were intended to cover the normal duration of the technical operations to be carried out in the refinery. To begin with, the action taken by the officials involved in the dispute took the form of partial work stoppages which were so frequent that they interfered with the maintenance work that was under way in the refinery, which meant that the work in fact took longer. Thereupon, the mere announcement that the strike was to be officially declared brought about an artificial increase in demand that immediately provoked a crisis in the normal supply of fuel to the public. Had the situation continued, there was a danger that stocks might run out, especially since, as already pointed out, even the importation of refined petroleum products could only be carried out by ANCAP. It was therefore obvious, in these circumstances, that the interruption of services would create a crisis that was liable to endanger the normal living conditions of the population. It should also be stressed that the Ministry of Labour and Social Security had, quite normally and sufficiently in advance, advised the Board of the National Fuel, Alcohol and Portland Cement Administration (ANCAP) to convene the workers' organisation to discuss and draw up an agreement concerning the services to be maintained in the event of a dispute. This was done in September 1986, whereupon the trade union organisation replied that it did not accept the interference of either the Government or the employers in deciding how it was to conduct its defence of the workers' interests and consequently would not discuss with the Board what services should be maintained during a dispute with the management, adding that the matter would be decided in each case at the assemblies of the organisation. As any hope of reaching an agreement on minimum services was thus out of the question, and in view of the announcement of more and more work stoppages by ANCAP officials, the Ministry of Labour and Social Security, making use of the powers conferred upon it by section 4 of Act No. 13720, decided which ANCAP services should be maintained in operation by emergency shifts. The latter affected a total of 557 officials, scarcely 7.78 per cent of the total number of workers. Furthermore, considering the complainant's allegations, it must not be forgotten that the officials assigned to emergency shifts who did not report for work were subjected only to disciplinary sanctions of a purely administrative nature; this took the form of a suspension of their duties, with a corresponding loss of remuneration, but at no time were those involved deprived of their freedom. The arrest of strikers referred to by the complainant occurred because they were intimidating distributors outside the workplace; only the strict minimum of arrests were made and the judicial authorities took immediate action.

&htab;443.&htab;The Committee notes that in the present case the complainant organisation objects to the declaration of certain services as essential and the ensuing imposition of minimum services by resolutions of the Ministry of Labour issued in 1986 under section 4 of Act No. 13720, in connection with strike action taken by public officials and state employees in the National Social Security Directorate and the National Fuel, Alcohol and Portland Cement Administration and by dockers. In the complainant's view, section 4 of the Act is unconstitutional and empowers the Ministry to decide unilaterally that any public service is essential and therefore subject to minimum service requirements. The Committee notes that the Government argues that section 4 of Act No. 13720 is constitutional and that the establishment of a minimum service under this Act in the sectors concerned was carried out in accordance with principles formulated by the Committee on Freedom of Association. The Government also stresses that the trade union organisations did not make use of the existing legal channels open for them to contest the Act or administrative resolutions.

&htab;444.&htab;The Committee wishes to point out that it is not within its competence to pronounce on the constitutionality of the Act objected to by the complainant. However, in so far as it is applied in practice, the Committee must examine whether this Act and the administrative measures taken under it are in accordance with the principles of freedom of association. In this respect, the Committee, whilst noting the criteria for the application of the legislation in question that the Ministry of Labour claims to observe, feels bound to express its concern at the wording of section 4 of Act No. 13720. The wording, as pointed out by the complainant organisation, can be applied to any public service which may then be required to provide a minimum service in the case of a strike; this is in open contradiction with the principles of the Committee concerning the nature of the services in which such a restriction is admissible. Consequently, the Committee requests the Government to take the necessary measures so that the establishment of minimum services in the case of strike action is legally possible only in services where the interruption might endanger the life, personal safety or health of the whole or part of the population or in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population.

&htab;445.&htab;In the present case, as regards the minimum services established by administrative authority during strikes in the social security, customs, dock work and fuel supply sectors, the Committee wishes to recall the principles which it has repeatedly formulated on the matter and which must be seen as affording a minimum guarantee for the exercise of the right to strike, without prejudice to the possibility of individual national systems providing for a greater degree of protection of the exercise of the right to strike in their legislation and practice.

&htab;446.&htab;On previous occasions, the Committee has considered it legitimate for a minimum service to be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Similarly, the Committee has pointed out that, to be acceptable, the minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population and that, furthermore, the determination of minimum services should involve not only employers and the public authorities but also workers' organisations [see 234th Report, Case No. 1244 (Spain), paras. 153 to 155]. This not only allows a careful exchange of viewpoints on what in a given situation can be considered as minimum services limited to the absolutely essential, but also contributes to guaranteeing that the scope of the minimum services does not result in the strike becoming ineffective in practice because of its limited impact and to dissipating possible impressions in the trade union organisations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services [see 244th Report, Case No. 1342 (Spain), para. 154].

&htab;447.&htab;In the Committee's opinion, the branches of activity in which the strikes referred to in the present case were declared fulfilled on the whole the requirements of the aforementioned principle concerning the acceptability of establishing minimum services. Nevertheless, upon reading the administrative resolutions impugned by the complainant organisation and taking into account the various aspects of the complaint to which the Government made no specific reply, concerning the actual extent of the minimum services (particularly in the social security sector - in which, for example, the entire staff of the Raigon Holiday Camp were allegedly affected - and in ANCAP where the painting of mooring buoys for oil-tankers was allegedly declared essential), the Committee does not exclude the possibility that excessive minimum services were established, even if this is somewhat attenuated by the fact that the trade union organisations, which considered that Act No. 13720 was unconstitutional and claimed that it was their responsibility to provide the necessary minimum services during the dispute in accordance with their own procedure, did not accept the Ministry of Labour's proposal to take a joint decision on these minimum services. The Committee emphasises that in cases such as this a definitive ruling on whether the level of minimum services was indispensable or not - made in full possession of the facts - can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action.

&htab;448.&htab;The Committee expresses the hope that in the future matters relating to minimum services might be resolved through dialogue.

&htab;449.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take steps with a view to amending section 4 of Act No. 13720 in order to bring it into conformity with the above-mentioned principles relating to minimum services.

(b) The Committee expresses the hope that in the future matters relating to minimum services might be resolved through dialogue.

(c) The Committee requests the Government to send as soon as possible the report - which it announced it would send - of the committee of inquiry set up to determine the truth of the other allegations contained in the present complaint.

&htab;450.&htab;In a communication dated 15 May 1987, the Zambia Congress of Trade Unions (ZCTU) presented a complaint of violations of trade union rights against the Government of Zambia. It presented further allegations in communications of 24 September and 19 October 1987. The Government supplied its observations in communications dated 26 October and 9 November 1987 and 5 January 1988.

&htab;451.&htab;Zambia 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); it has ratified the Workers' Representatives Convention, 1971 (No. 135).

&htab;452.&htab;The ZCTU, in its communication of 15 May 1987, firstly alleges that the Government has, since a 1983 decision communicated to the complainant in March 1984, banned labour leaders from addressing workers during May Day celebrations without providing substantial reasons. It claims that this constitutes interference in trade union activities contrary to Convention No. 87 and also violates Zambia's constitutional provisions guaranteeing freedom of assembly and association. It explains that, during May Day festivities prior to the ban, labour leaders had occupied a significant place on the platform giving speeches confined to socio-economic subjects. The Government, however, had accused them of using the occasion to insult the country's leadership.

&htab;453.&htab;According to the ZCTU, in 1986 it proposed a review of the way Labour Day was celebrated, but was informed by the authorities it contacted (the Minister of Labour and the Secretary-General of the ruling United National Independence Party) that it was not for them to meet the Congress or make a decision. Faced with this inaction, the Congress General Council decided in February 1987 that if the status quo were to be maintained, the labour movement would refrain from participating in the May Day celebrations. Both the Party Secretary-General and the President protested this position taken by the Congress; labour leaders were accused in the press of receiving financial assistance for the purpose of fomenting discontent among the people. The President even threatened to invoke his constitutional powers to dissolve the Congress, states the ZCTU.

&htab;454.&htab;Secondly, the complainant alleges that, in practice, strikers and strike leaders can be dismissed in violation of the protection enshrined in Convention No. 135, ratified by Zambia. The ZCTU points out that such a possibility also infringes the Zambian Industrial Relations Act which guarantees workers the right, at any appropriate time, to take part in union activities including strikes. From newspaper clippings attached to the complaint, it appears that, after a series of allegedly "illegal" strikes in March/April 1987, employers were empowered to fire strikers and to have them reapply for employment.

&htab;455.&htab;Thirdly, the complainant alleges that the Government has interfered in trade union affairs by authorising the ruling political party to organise training of labour leaders overseas without the knowledge or approval of the ZCTU or its affiliates. It encloses a copy of an administrative circular sent by a district council to all trade unions in its area requesting the names of all trade union leaders so as "to enable the Party to consider labour leaders for courses abroad", as well as a copy of the Congress' objection to this approach. It also supplies a copy of the reply sent on 12 January 1987 by the Secretary-General of the United National Independence Party to the ZCTU in which he states:

&htab;I hope that you are not objecting to the Party selecting candidates to go for courses either internally or abroad if some of these candidates are members of the Trade Union Movement. As you are aware, in the past we have recruited people for Home Guard, National Service or Political Education training without necessarily consulting everyone involved. The same is also true for those who we have selected to go for courses outside the Republic of Zambia. The Party would be the last organisation to undermine a Trade Union Movement. The Party values the existence of the Trade Union greatly. Past history confirms this. I hope that this clears any fears that might have arisen.

&htab;456.&htab;In this connection the ZCTU stresses its commitment to worker education through the resources and agencies at its disposal. It believes, however, that it is entitled to know the nature of the training for which its members are chosen and, above all, to be consulted whenever the Party proposes to train union leaders abroad or locally.

&htab;457.&htab;In a telex dated 24 September 1987, the ZCTU complains that upon their return from the 73rd Session of the International Labour Conference in June 1987, the passports of the ZCTU Secretary-General, Mr. N.L. Zimba (deputy Workers' member of the ILO Governing Body), and Chairman, Mr. F.J. Chiluba, were confiscated by the Government without any reasons being given. It requests the return of the passports as a matter of urgency. On 19 October 1987, the Secretary-General of the ZCTU informed the ILO that both his and Mr. Chiluba's trade union activities - particularly overseas visits - were still severely curtailed by the confiscation of their passports. Mr. Zimba feared that, despite the ILO invitation to take part as deputy member in the 238th Session (November 1987) of the Governing Body, he would be prevented from leaving Zambia.

&htab;458.&htab;In its communication of 26 October 1987, the Government states that the confiscation of the passports of Messrs. Chiluba and Zimba was not done out of malice; there were good reasons why the authorities took the passports when these two persons returned from the International Labour Conference. Foremost, states the Government, it must be appreciated that both persons are Zambian citizens and that the Government has discretionary powers to issue or withdraw passports from its nationals depending on certain circumstances. The Government states that it also reserves the right to handle its citizens in its own way without undue interference. It adds that both men are free to appeal to the authorities for the reissuing of passports to them.

&htab;459.&htab;On 9 November 1987 the Government responded to an ILO cable of 29 October which reflected the grave concern of participants in the Fourteenth International Conference of Labour Statisticians with regard to the absence of Mr. F.J. Chiluba, who had been named by the Governing Body as a Worker representative for that Conference (which lasted from 28 October to 6 November). The Zambian Government stated that it was unable to give assurance of the participation of Messrs. Chiluba and Zimba in the Fourteenth International Conference of Labour Statisticians and the Governing Body session, respectively. It emphasised that the confiscation of passports from these two persons had nothing to do with their trade union activities but with security; the matter was not negotiable. It stated that the policy of the Republic of Zambia was to make the trade union movement strong and effective, but it had to be recognised that the trade union movement in Zambia was not only made up of Messrs. Chiluba and Zimba. It added that the participation of a Workers' representative from Zambia in the Fourteenth International Conference of Labour Statisticians would have been possible if there had not been insistence that it should be Mr. Chiluba. According to the Government, there were many other trade unionists in Zambia who would have benefited from attendance at the Fourteenth International Conference of Labour Statisticians.

&htab;460.&htab;In its letter of 5 January 1988, the Government points out that it has not ratified Conventions Nos. 87 and 98, but adds that by its membership of the ILO the Republic of Zambia does respect some principles of freedom of association and the right to organise. It adds that trade unions in Zambia are established by virtue of article 23 of the Constitution and the provisions of the Industrial Relations Act (IRA). Section 4 of the IRA grants an employee the right to take part in the formation of a trade union, to participate in the union's activities and to election or appointment to trade union office. Penalties through court action exist for contravention of this section. The Government stresses that, in practice, workers in Zambia do enjoy the rights bestowed upon them by section 4 of the IRA. It considers that the allegations made in this complaint are without any basis at all.

&htab;461.&htab;With regard to Labour Day, the Government explains that it is celebrated on 1 May and has been declared a national public holiday; the day has been set aside to honour all workers, not only wage-earning workers or unionised workers, for their contribution to the development of the country. The organisation of the 1 May celebrations is jointly undertaken by the labour movement, employers' organisations and government representatives. It is, therefore, incorrect to say that the labour movement does not take part in the organisation of the occasion.

&htab;462.&htab;According to the Government, May Day in Zambia is characterised by march pasts and rallies where awards are given to deserving workers and usually a high-ranking officer officiates at these functions. However, in 1985, the Government banned trade unionists from addressing May Day rallies because experience had shown that the occasion was being used by trade unionists to make highly inflammatory speeches which tended to fan discord and disunity and therefore threatened the security of the nation; even political leaders are not allowed to make speeches, except His Excellency the President who makes a national address on the eve of the May Day celebrations. The Government states that this should not be seen to mean muzzling of the labour movement, as the labour movement has ample opportunity to air its views in many Party and government institutions where it is adequately represented.

&htab;463.&htab;As regards the alleged violation of Convention No. 135 through the possibility of dismissal of striking workers and their leaders, the Government states that Convention No. 135, ratified by Zambia, does not in any way specifically provide for the right to strike. Zambia, however, does recognise strike action as a weapon by workers in promoting their interests provided that it is done within the provisions of the law. The Government indicates that section 116 of the IRA and trade union constitutions regulate the staging of strikes; a strike ballot has to be conducted prior to the strike and, if this is not followed, the strikers are in breach of their contracts of employment and the employer is within his rights to consider the contracts as having been terminated. The Government adds that section 117 of the IRA prohibits workers in essential services from going on strike on pain of criminal prosecution. It stresses that, to date, not a single worker has been prosecuted. In order to prevent wildcat strikes, the Government is obliged to issue warnings to workers of the repercussions should they stage illegal and unconstitutional strikes. The ZCTU allegation regarding dismissal of strikers is therefore, states the Government, misleading.

&htab;464.&htab;With regard to the training of labour leaders abroad, the Government points out that it has the responsibility of training its nationals in all aspects of human endeavour through its institutions or through bilateral arrangements or with other countries or organisations. It is within the Government's right to select the most suitable candidate for whatever course. The intention of the Government in this particular case is to turn out well-qualified trade union leaders. According to the Government, there is no evidence to suggest that the Party and its government has ulterior motives and that the selection for trade union training without the union's involvement is a way of muzzling the labour movement and undermining its independence. The Government in fact desires this independence, since it is government policy to encourage the development of a strong trade union movement. The Government refers to the letter dated 12 January 1987 from the Secretary-General of the Party addressed to the ZCTU as proof that it is not the wish of the Party to undermine the trade union movement.

&htab;465.&htab;Finally, with regard to the alleged threats by the Head of State to dissolve the ZCTU, the Government points out that the ZCTU is established under the IRA and its objectives are to represent workers' interests and participate in the socio-economic development of the country. It states, however, that if the ZCTU loses direction there is no reason why it should not be corrected. The Government adds that this refers to its leadership.

&htab;466.&htab;The Committee notes that this case involves four distinct sets of allegations concerning the free exercise of trade union rights by the complainant confederation: (a) a ban since 1985 on labour leaders addressing workers on May Day; (b) the possibility of dismissing striking workers in violation of Convention No. 135; (c) interference by the ruling political party in the training of unionists; and (d) the confiscation by the authorities of the passports of the ZCTU Chairman, Mr. F.J. Chiluba, and Secretary-General, Mr. N.L. Zimba.

&htab;467.&htab;As regards the participation of labour leaders in May Day celebrations which continues to be banned despite attempts to change the arrangements for 1987, the Committee notes the Government's position according to which trade unionists have abused the occasion and therefore threatened national security. The Committee observes, however, that no evidence has been presented showing excesses in language or of a political content in the past speeches of trade unionists on May Day. The Committee would accordingly draw the Government's attention to the recognised principles of freedom of association that the right to organise and take part in public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [See 233rd Report, Case No. 1054 (Morocco), para. 333.] and that the full exercise of trade union rights calls for a free flow of information, opinions and ideas which involves workers and their organisations enjoying freedom of opinion and expression at their meetings and in the course of other trade union activities. [See 217th Report, Case No. 963 (Grenada), para. 538.] It expresses the hope that the Government will take these principles into consideration for the celebrations of May Day 1988.

&htab;468.&htab;As regards the possibility of dismissing striking workers, the Committee notes from the newspaper clippings supplied by the ZCTU that certain employers were urged to do so during industrial action in the copperbelt in 1987; there were thus proven instances of threats of anti-union action. The Committee would accordingly recall, in general, that the use of extremely serious measures, such as dismissal of workers for having participated in a strike, implies a serious risk of abuse and constitutes a violation of freedom of association. [See, for example, 234th Report, Case No. 1179 (Dominican Republic), para. 297.] However, the Committee notes that in the present case it is not clear whether any actual dismissals took place.

&htab;469.&htab;The Committee notes the Government's denial that its training policy is a way of muzzling the labour movement, but the Committee is concerned to see from the administrative circular supplied by the complainant that it is the ruling political party which has the final choice as to which labour leaders shall attend courses abroad. The Committee trusts that this broad power vested in the Party does not extend to the choice of unionists to take part in purely union-organised courses wherever held, which, it would point out to the Government, as is clear from the principle of non-interference in the affairs of workers' organisations, should be a matter ultimately in the hands of the workers' organisation or educational institution responsible for the training activities.

&htab;470.&htab;As regards the confiscation by the authorities of the passports of the Chairman and Secretary-General of the complainant union which prevented their participation in two ILO meetings, the Committee notes that the Government's firm refusal to return these documents appears to be based on two distinct grounds: security reasons (which are not elaborated) and its reference to the correction of the leadership of the ZCTU if the union loses direction. While the Committee has stated that workers and their organisations should respect the law of the land, it has likewise emphasised in cases such as the present one that it is important that no delegate to any organ or Conference of the ILO, and no member of the Governing Body, should in any way be hindered, prevented or deterred from carrying out his functions or from fulfilling his mandate. [See, for example, 61st Report, Case No. 271 (Chile), para. 50; 83rd Report, Case No. 399 (Argentina), para. 301; 217th Report, Case No. 1104 (Bolivia), para. 315.] Apart from the specific protection granted in conformity with article 40 of the Constitution of the ILO to members of the Governing Body so as to enable them to carry out their functions vis-à-vis the Organisation in full independence, the Committee would stress that participation as a trade unionist in meetings organised by the ILO is a fundamental trade union right. It is therefore incumbent on the government of any member State of the ILO to abstain from any measure which would prevent representatives of a workers' or employers' organisation from exercising their mandate in full freedom and independence. In particular, a government must not withhold the documents necessary for this purpose.

&htab;471.&htab;The Committee is particularly concerned over the Government's attitude because Messrs. Chiluba and Zimba were both the subject of an earlier complaint against Zambia [See Case No. 1080, 217th Report, paras. 70 to 79, approved by the Governing Body in May 1982.] concerning their arrest under the Preservation of Public Security Act. Although they appealed and were eventually released from detention and the complainant withdrew its complaint, the Committee noted the complainant's statement of trust that the release was final and that the trade union leaders concerned would suffer no repercussions.

&htab;472.&htab;In the present case the Committee would urge the Government to respect these basic principles of trade union rights which the Government itself recognises as flowing from its membership of the ILO, irrespective of ratification of any specific freedom of association Conventions. The Committee requests it to take the necessary measures for the return of the passports, in particular so that the ZCTU Secretary-General, and deputy Worker member of the ILO Governing Body, Mr. N.L. Zimba, will be able to participate fully in ILO meetings; it requests the Government to inform it of developments in this matter.

&htab;473.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee considers that the participation as a trade unionist in meetings organised by the ILO is a fundamental trade union right. It urges the Government to return urgently the passports of the ZCTU Chairman and Secretary-General to them, in particular so as to allow them to participate fully in international trade union and ILO meetings and it requests the Government to inform it of developments in this matter.

(b) The Committee draws the Government's attention to the importance of the participation of trade union leadership - if they so wish - in May Day celebrations and expresses the hope that the Government will take this principle into consideration for the celebration of May Day 1988.

(c) The Committee trusts that the choice of unionists to take part in purely union-organised training courses, wherever held, is left to the workers' organisation or educational institution responsible for such activities and is not dictated by any political party.

&htab;474.&htab;The International Confederation of Arab Trade Unions (ICATU) presented a complaint of violations of trade union rights against the Government of Bahrain, in a communication dated 3 June 1987. The Government supplied its observations on the complaint in a letter dated 6 January 1988.

&htab;475.&htab;Bahrain 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;476.&htab;In its communication of 3 June 1987, the ICATU alleges that the authorities of Bahrain do not allow any form of trade union organisation and the so-called "Workers' Association" in Bahrain is far from being authentic workers' representation because it is only for tripartite representation to the International Labour Organisation.

&htab;477.&htab;According to the ICATU, the Government also practises repression against workers. It alleges that the authorities have recently launched a massive campaign against workers and trade unionists, many of whom have been imprisoned. The ICATU states that, in addition to violations of trade union rights and freedoms, these authorities constantly violate human rights, deny workers the right to work and put them through interrogation regardless of appeals from international bodies and from their relatives. It requests that appropriate measures be taken for the immediate release of imprisoned workers and trade unionists.

&htab;478.&htab;The ICATU supplies a large amount of documentation in support of its complaint, including lists of political prisoners. First, it annexes a paper criticising the system of workers' representation created by virtue of sections 142 to 144 of the Bahraini Labour Law and the regulating legislation made thereunder. Workers' representatives from the various joint committees set up in each workplace make up the General Committee of Bahrain Workers whose role is, according to the ICATU, confined to consultation and advice in labour disputes or where there are production problems. The complainant supplies copies of the Legislative Decrees and Ministerial Orders governing the joint committees (No. 20 of 16.6.1982; Order No. 9 of 18.4.1981, No. 15 of 25.7.1981, Nos. 19 and 20 of 1.11.84) and the General Committee of Bahrain Workers (No. 10 of 8.4.1981), as well as a copy of the statutes of the General Committee of Bahrain Workers.

&htab;479.&htab;Secondly, the complainant lists the alleged violations of human and trade union rights carried out by the security forces, in particular their "special section": during 1981, the arbitrary arrest of 550 persons and the statutory possibility of continued detention without trial for up to three years; torture - including crushing the head in a vice, beating, burning, electric shocks, deprivation of sleep, attacks by police dogs, use of vinegar and salt on wounds - and ill-treatment - isolation, rape threats - of prisoners; arrests during strikes and demonstrations; censure imposed by the 1979 Act on Printed Publications; the hasty trial (within 24 hours) of detainees under the 1984 Act on Summary Procedure.

&htab;480.&htab;The ICATU cites the particular example of the arrest, in March 1980, of a group of persons who were tried at the Mahret Maritime Military Base and sentenced to prison terms of four to seven years for belonging to a banned trade union organisation. The organisation was, according to the complainant, the Constitutive Committee of the Federation of Bahrain Workers which had had public contacts with the Minister of Labour in 1979.

&htab;481.&htab;The ICATU also supplies a list of persons allegedly under arrest since 13 July 1986 which includes the President of the General Committee of Bahrain Workers in the Aluminium Company (ALBA), Mr. Ibrahim Al Kassab.

&htab;482.&htab;In its letter of 6 January 1988, the Government refutes as untrue and misleading the unsubstantiated allegations made. It considers that they are wholly without foundation in each of the instances cited, particularly concerning alleged acts of infringements of human rights, repression, wrongful imprisonment and denial of the right to work of which no instances have occurred whatsoever.

&htab;483.&htab;Concerning workers' representation, the Government refers to its approved policy for the further strengthening and progressive development of joint bargaining, due regard being afforded to the need to overcome the existing weak character of employers' and workers' organisations by appropriate training in industrial relations and related subjects. According to the Government, implicit in this policy is the establishment of the existing joint committees of workers at establishment level, and of the General Committee of Bahrain Workers, as accredited freely elected voluntary organisations representative of workers' interests, the primary purpose of which is the regulation of relations between workers and employers.

&htab;484.&htab;In this connection, the Government refers to earlier correspondence in 1982 and 1983 relating to cases against Bahrain mentioned in Case No. 1043 and Case No. 1211, in which the Committee on Freedom of Association recommended that the circumstances called for no further examination.

&htab;485.&htab;As regards the allegations concerning arrests, detentions and torture of workers and trade unionists, the Committee notes that it has had occasion in the past to consider such allegations against the Government of Bahrain [see Case No. 1211, 233rd and 234th Reports of the Committee, paras. 580 to 592 and 39 to 45 respectively, approved by the Governing Body in February and May 1984, respectively]. In that past case, the Committee took note of the Government's general denial of detention and torture and its specific reply concerning the treatment of three named members of the Joint Committee of the Association of Aluminium Workers of Bahrain (ALBA). At that time it recalled that the arrest and detention of trade unionists constitute particularly serious measures which should be accompanied by all appropriate safeguards, in particular judicial ones; while persons engaged in trade union activities, or holding trade union office, cannot claim immunity in respect of ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists. Moreover, the detention or internment of trade unionists, especially trade union leaders, for reasons connected with their activities to defend the interests of workers constitutes a serious violation of civil liberties in general and trade union rights in particular. [See, in this respect, 214th Report of the Committee, Case No. 1097 (Poland), para. 747.]

&htab;486.&htab;In the present case the Committee observes that, although much of the documentation supplied by the complainant refers to political prisoners and thus falls outside this Committee's scope, details are given on the arrest, since 13 July 1986, of a named workers' representative, Mr. Ibrahim Al Kassab, in the ALBA Aluminium Company [which, given the translation from Arabic, appears to be the same undertaking referred to above in the context of Case No. 1211]. While noting the Government's general denial in the present case of all of ICATU's allegations, the Committee feels bound to draw the Government's attention to the importance it attaches to bringing detainees to trial swiftly in all cases, irrespective of the reasons put forward by governments for prolonging detentions because such detentions may involve serious interference with trade union rights [see, for example, 236th Report, Cases Nos. 1157 and 1192 (Philippines), para. 298].

&htab;487.&htab;Similarly, as regards the specific allegation of the sentencing of workers to long prison terms for merely belonging to the Federation of Bahrain Workers, a banned trade union organisation, the Committee observes that the Government's reply amounts to a general denial and assertion that part of its official policy is to overcome the "existing weak character of employers' and workers' organisations". The Committee notes that an earlier case against the Government of Bahrain [Case No. 1043, 211th Report, paras. 572 to 590, 218th Report, paras. 482 to 505, and 230th Report, paras. 35 to 43, approved respectively by the Governing Body at its November 1981, 1982 and 1983 Sessions] also involved the sentencing of trade unionists at the El-Mahret Maritime Military Base to which the Government replied with directly contradictory information, as in the case presently before the Committee.

&htab;488.&htab;The Committee would accordingly adopt the same position as it took in the earlier case when neither party to the complaint submits evidence to substantiate its version of the facts; it limits itself to recalling generally the importance of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the governments consider to have no relation to their trade union functions. [See, for example, 187th Report, Case No. 892 (Fiji), para. 289; 208th Report, Case No. 940 (Sudan), para. 271.]

&htab;489.&htab;As regards the legislative aspect of this case, the Committee observes that sections 142 and 143 of the 1976 Labour Law as amended and Ministerial Orders Nos. 9 and 10 of 1981 were thoroughly examined during its consideration of Case No. 1043 referred to above. The Committee's conclusion at the time - while it was silent as to type of workers' representation set up, i.e. joint committees at the undertaking level and an elected central General Committee of Bahrain Workers - was that certain election procedures involved the risk that such workers' representatives might not be elected freely. It also criticised the imposition of arbitration for the settlement of labour disputes which effectively prohibited strike action. It requested the Government to amend the legislation on these various points. These conclusions were endorsed when the Committee examined Case No. 1121 also mentioned above.

&htab;490.&htab;In the present case, the Committee notes that the complainant centres its allegations on the authenticity of the current workers' representation set up under the legislation in question. This system can be described briefly as the election from workers' members of establishment-level joint committees to the General Committee of Bahrain Workers. This national body is empowered "to raise the productive capacity of the workers, to look after their interests and to improve their national and social situation" (s. 2 of Ministerial Order No. 10 of 1981 and s. 143 of the Labour Law); it also has the special task of "representing the workers of Bahrain before Arab, international and Gulf organisations and congresses in which Bahrain is availed of tripartite representation assured by Government, employers and workers" (s. 5(2) of Order No. 10) and "representing the wage earners of Bahrain on the Higher Council for Occupational Training and on tripartite councils and commissions on which Government, employers and workers are represented by virtue of the Labour Law for the private sector and the Social Security Code" (s. 5(3) of Order No. 10).

&htab;491.&htab;Since the complainant in the present case limits itself to criticising the election procedure and role of the General Committee of Bahrain Workers as set out in the legislation, the Committee would repeat - as it did in Case No. 1043 - that a legislative system in which the workers of a country are unable to form trade union organisations of their own choosing is contrary to the principles of freedom of association. The Committee therefore again expresses the firm hope that the legislation in question will be amended so as to establish clearly the right of all workers to form the organisations of their own choosing. It requests the Government to keep it informed of any measures taken in this direction.

&htab;492.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Regarding the allegations of arrest and detention without trial of workers and trade unionists, the Committee recalls generally the importance of prompt and fair trial by the judiciary in all cases. It requests the Government to supply information on the situation of Mr. Ibrahim Al Kassab, President of the General Committee of Bahrain Workers in the ALBA Aluminium Company, allegedly arrested since 13 July 1986, and other workers allegedly detained.

(b) As regards the allegation that the Bahraini labour legislation fails to conform with the general principles of freedom of association, the Committee would once again draw the attention of the Government to its previous comments and, in particular, would repeat its firm hope that the legislation will be amended so as to establish clearly the right of all workers to form organisations of their own choosing.

&htab;493.&htab;The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 25 June 1987. The ICFTU submitted further allegations in a communcation dated 26 October 1987. The Government sent its observations in a communication dated 25 January 1988.

&htab;494.&htab;The Government has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;495.&htab;The complainant organisation alleges in its communication of 25 June 1987 that, in order to prevent the seafarers from exercising their right to strike, the Government ordered troops of the Brazilian Navy to occupy all ports and to prevent the strikers from leaving their place of work. When the workers of the Petrobras oil refineries called a one-day work stoppage, the Brazilian army and the federal and military police of several States occupied the refineries with combat vehicles. This situation occurred at a time when the workers had lost 60 per cent of their purchasing power as a result of the Government's wage policies.

&htab;496.&htab;In its communication of 26 October 1987, the complainant alleges that Mauro Pires, leader of the Union of Vehicle Drivers and Allied Workers of San Andrés, was murdered on 4 September 1987; that trade union leader José Barbosa dos Santos was attacked by two individuals who shot at him from a car, though he was unharmed; and that union leader Paulo Pereira received telephone calls threatening his life. A possible explanation of these occurrences is the existence of an armed paramilitary group set up by employers to eliminate the militant members of the Union of Vehicle Drivers and Allied Workers.

&htab;497.&htab;The Government states in its communication of 25 January 1988 that the activities carried out by petroleum workers and seafarers have been defined by law as essential services inasmuch as the country depends on them for its supply of fuel and food and that, in the case of seafarers and port workers, their activities are a matter of national security.

&htab;498.&htab;The Government states in the specific case of the Petrobras Company, where there was an "undeclared" strike in which the workers remained at their posts and paralysed all activities within the enterprise, the army was called in to protect the enterprise's assets (which are public assets given that Petrobras is a semi-public enterprise) and to guarantee employees' access to their place of work. There were however no incidents involving trade union leaders or strikers.

&htab;499.&htab;As regards the seafarers, the Brazilian Navy was called in to protect port facilities, which are public property, to ensure the flow of supplies to the cities and, again, to guarantee employees' access to their places of work, since separate agreements have been concluded with certain enterprises. Here again, no incidents occurred. The Government points out that the strike was declared illegal by the labour court.

&htab;500.&htab;The Committee notes that the complainant alleges that strikes which had been called or undertaken in the petroleum sector and in the port and maritime sector were repressed by the military occupation of the plant and facilities concerned.

&htab;501.&htab;The Government claims that these activities were essential and that the intervention of the army and navy was designed to protect the enterprises' plant and facilities, to ensure the flow of supplies to the cities and to guarantee freedom to work. The Committee notes that the legislation in force, and specifically section 1 of Legislative Decree No. 1632 of 4 August 1978, provides that, in the interests of national security, the essential services in which strikes are prohibited by the Constitution include petroleum services and loading and unloading of supplies.

&htab;502.&htab;The Committee has stated on numerous occasions [see, for example, 226th Report, Case No. 1166 (Honduras), para. 343] that, as one of the essential means through which workers and their organisations may promote and defend their occupational interests, the right to strike may be denied or subject to major restrictions only in the public service or essential services in the strict sense of the term. It has added that the concept of public servants should be confined to those acting in their capacity as agents of the public authority and that essential services should be interpreted as referring to those whose interruption would endanger the life, personal safety or health of the whole or part of the population; otherwise, if the legislation defines the public service or essential services too broadly, the principle whereby the right to strike may be limited or prohibited in those sectors would become meaningless. In the present case, the workers in the petroleum enterprises and those involved in loading and unloading are not public officials in the sense set forth above, nor do they perform an essential service in the strict sense of the term [see, for example, Freedom of Association and Collective Bargaining , General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4B), International Labour Conference, 69th Session, 1983, para. 214, and 233rd Report of the Committee, Case No. 1225 (Brazil), para. 668]. In these circumstances, the Committee considers that the prohibition of strike action in the petroleum sector and in the ports (loading and unloading sectors) provided for in Legislative Decree No. 1632 of 4 August 1978 is contrary to the principles of freedom of association.

&htab;503.&htab;Finally, the Committee observes that the Government has not replied to the allegations contained in the ICFTU's communication of 26 October 1987 concerning, inter alia, the assassination of the trade union leader Mauro Pires.

&htab;504.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take steps for the amendment of the legislation in force, and specifically Legislative Decree No. 1632 of 4 August 1978, so that the list of activities in which strike action is prohibited is confined to essential services in the strict sense of the term (i.e. those whose interruption may endanger the life, personal safety or health of the whole or part of the population).

(b) The Committee requests the Government to reply to the allegations contained in the ICFTU's communication of 26 October 1987 concerning, inter alia, the assassination of the trade union leader Mauro Pires.

&htab;505.&htab;By a communication dated 1 October 1987, the International Union of Food and Allied Workers' Associations (IUF) presented a complaint of violations of trade union rights against the Government of Fiji. The International Confederation of Free Trade Unions (ICFTU) presented a similar complaint on 14 and 15 October 1987 and supplied fresh allegations in a letter of 8 February 1988. The Government sent its reply in communications dated 19, 28, 29 and 30 October and 10 November 1987; due to the recent transmission of the ICFTU letter of 8 February, the Government has not been able to comment on it.

&htab;506.&htab;Fiji 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;507.&htab;In its communication of 1 October 1987, the IUF alleges that Mr. James R. Raman, General Secretary of its affiliate, the National Union of Factory and Commercial Workers of Fiji, has been detained following the 25 September military coup in Fiji.

&htab;508.&htab;On 14 October 1987, the ICFTU alleges that the General Secretary and Treasurer of its affiliate, the Fiji Trades Union Congress (TUC), Messrs. James Raman and Bob Kumar, were detained by the Fiji security forces for several days. It states that trade union activities have been severely restricted and that the military forces occupied and closed indefinitely the TUC headquarters, as well as the offices of the Fiji Public Service Association Credit Union, the Fiji Bank Employees' Union and the Fiji Teachers' Union. It adds that the premises of the National Union of Factory and Commercial Workers were closed during part of the day of 8 October 1987. According to the ICFTU, the military leader, Mr. Rabuka, declared that his Government would restructure the union movement in Fiji, which the ICFTU sees as a clear interference in the internal affairs of the Fiji trade union movement.

&htab;509.&htab;On 15 October 1987, the ICFTU alleged that the Fiji Public Service Association premises were also closed and guarded by the military. It states that Mr. James Raman of the TUC was prevented by the authorities at Nadi Airport from leaving the country a few days earlier to join a Commonwealth Trades Union Congress delegation which was to meet with the Commonwealth Heads of State at their meeting in Vancouver.

&htab;510.&htab;In its letter of 8 February 1988, the ICFTU states that an ICFTU mission which visited Fiji from 13 to 15 January 1988 reports continuing restrictions on trade union rights particularly, but not exclusively, in the public sector e.g. special permission is required from the Home Affairs Ministry for certain trade unionists who wish to travel abroad, a number of unionists have been suspended from their employment, surveillance of trade unionists and their office premises, police must be notified before unions hold meetings.

&htab;511.&htab;In a cable dated 19 October 1987, the Government - through the Minister for Employment and Industrial Relations of the Executive Council of the interim Government of Fiji - assures the ILO that the trade union rights in Fiji under existing labour laws are still intact. It points out, however, that these rights will only continue provided that certain trade union leaders refrain from subversive activities likely to jeopardise the economy. The Government states that the trade unionists referred to by the complainants have been released. In addition, talks are being conducted between the President and the General Secretary of the TUC as regards the closure of trade union premises; the Government undertakes to inform the Committee of the outcome of these talks in due course.

&htab;512.&htab;In a letter dated 28 October 1987, the Government explains that whilst it is true that certain trade union leaders (including Mr. J.R. Raman) were detained immediately following the military coup on 25 September 1987, this measure was necessary in view of the subversive actions by these trade unionists aimed at jeopardising the economy. It repeats that all trade unionists have since been released and trade union rights under existing laws are still intact, "as we all embark on the path of reconciliation and eventual return to normality". It stresses, however, that the trade union movement in Fiji will be expected to co-operate with the Government, and in return it gives the assurance that their rights will continue as normal. According to the Government, it must be appreciated that in these difficult times, increased state intervention in dispute resolution may be expected if trade unions refuse to shoulder their responsibilities to the community and the nation as a whole. It trusts that the foregoing clearly explains the actions it was forced to take, unpalatable as they may be, but necessary under the circumstances.

&htab;513.&htab;In a cable of 29 October 1987, the Government states that all trade union premises are now functional and all trade union rights, including the right to strike, are still intact as provided for under the existing Trade Disputes Act. In addition, it gives the assurance that these rights will remain intact as under the present Act in any new Constitution that may be promulgated. According to the Government, under the present circumstances, there is no bar on the holding of normal meetings of boards, committees and conferences of trade unions, provided the nearest police station is informed. This measure is deemed to be temporary only. The assurance is also given that the movement of trade union officials, in pursuance of their normal trade union functions, shall not be restricted.

&htab;514.&htab;The Government adds that following a series of talks with the Fiji Government, the TUC has expressed satisfaction with regard to trade union rights under the existing laws, and with the Government's assurances that these rights will continue to be protected provided that the trade unions refrain from subversive actions that are likely to destabilise the economy. In return, the Government received a TUC assurance that all its affiliates will be directed not to take any industrial action without pursuing the procedures provided for under the existing Trade Disputes Act. According to the Government, to this end, and following cordial talks, the TUC has agreed to request the Australian Council of Trade Unions (ACTU) to withdraw a proposal to impose a ban on flights to Fiji as from 1 November, and the TUC has also agreed to seek a meeting with the ACTU and New Zealand Federation of Labour (NZFOL) to determine the future of all bans.

&htab;515.&htab;In its communication of 30 October 1987, the Government states that the Fiji Government and TUC have come to an amicable agreement on all matters and allegations raised in the present case and that all trade union rights under existing laws have been restored to the satisfaction of the TUC. To substantiate this, on 10 November 1987, the Government sent a copy of the Fundamental Freedoms (Amendment) Decree No. 13 which repeals section 14 of the Fundamental Freedoms Decree of 1 October 1987, suspending industrial action by trade unions in the form of strikes, bans, go-slows, protest marches and demonstrations.

&htab;516.&htab;The Committee notes that this case concerns a series of events occurring immediately after the military coup of 25 September 1987, in particular: the temporary detention of Messrs. James Raman and Bob Kumar, General Secretary and Treasurer respectively of the Fiji Trades Union Congress, the closure for several days of the major trade unions' premises and restriction on the freedom of movement of the TUC General Secretary.

&htab;517.&htab;The Committee notes that the Government does not deny these incidents, but attempts to explain them as temporary and necessary following the military coup and in view of the subversive actions by these trade unionists aimed at jeopardising the Fijian economy.

&htab;518.&htab;The Committee observes that while no further mention is made of or details given, on any alleged "subversive actions" by the unionists concerned, the Government emphasises in its most recent communications that there have been cordial talks between the TUC and the Government which have led to a satisfactory accord and exchange of assurances regarding trade union rights in Fiji.

&htab;519.&htab;The Committee takes note of this agreement, and the fact that all detained unionists have been released, all closed union premises reopened and that freedom of movement is not hampered in any way. It also notes with interest that a certain piece of legislation - not mentioned by the complainants - which had suspended all forms of industrial action was abrogated virtually within a few weeks of its adoption.

&htab;520.&htab;On the other hand, the Committee must draw the Government's attention to the importance it attaches to the principle that the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards [see, for example, 233rd Report, Case No. 1211 (Bahrain), para. 589]. In addition, in similar cases the Committee has stated that measures of preventive detention may involve a serious interference with trade union activities which it would seem necessary to justify by the existence of a serious situation or emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period [see for example, 222nd Report, Case No. 1135 (Ghana), para. 263]. These safeguards should include the assurance that the detention is for a very short period of time and is not extended beyond the time absolutely necessary, that it is not accompanied by measures of intimidation and that it is not being used for purposes other than those for which it is designed and, in particular, to exclude ill-treatment [see for example, 214th Report, Case No. 1032 (Ecuador), para. 161 and 216th Report, Case No. 1084 (Nicaragua), para. 38].

&htab;521.&htab;Likewise, with regard to the temporary closure of certain major union premises, the Committee would draw the Government's attention generally to the resolution concerning trade union rights and their relation to civil liberties (adopted by the International Labour Conference at its 54th Session, 1970) which includes the right to protection of trade union property as one of the civil liberties essential for the normal exercise of trade union rights.

&htab;522.&htab;Finally, the Committee regrets that the General Secretary of the Fiji Trades Union Congress was prevented at the Nadi Airport from joining a Commonwealth Trades Union Congress delegation going to Vancouver, and would recall generally in this connection that the right of national trade unions to send representatives to international trade union congresses is a normal corollary of the right of those national organisations to join international workers' organisations [see, for example, 181st Report, Case No. 880 (Madagascar), para. 114].

&htab;523.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee considers that the preventive detention of certain leaders of the Fiji Trades Union Congress, even for a limited period of time after the military coup of 25 September 1987, involved a serious interference with trade union rights.

(b) The Committee also would recall generally that the military Government's temporary closure of certain major trade union premises and its prevention of a trade union leader's travel with an international trade union congress delegation, run counter to the international principles concerning the protection of trade union premises and the freedom of contact with international trade union organisations.

(c) The Committee, while taking note of the agreements reached with the TUC and the assurances given by the Government, wishes to underline that the exercise of trade union rights should not be considered as unlawful because of lack of co-operation of the trade unions with a government and cannot be considered as repayment for, and as a result of, co-operation between the trade union movement and a government, but as an inalienable right of the working people.

(d) The Committee requests the Government to send its observations on the most recent communication from the ICFTU dated 8 February 1988.