&htab;25.&htab;The complaint is contained in a communication of the NationalAssociation of Public Employees (ANEP) dated 27 February 1987. The Government sent its observations in a communication dated 4 January 1988.

&htab;26.&htab;Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;27.&htab;The National Association of Public Employees (ANEP) alleges in its communication dated 27 February 1987 that, as a result of strikes which it held in June 1984 in order to obtain better working conditions and wages for the employees of the General Directorate for Social Rehabilitation (Ministry of Justice), criminal action was brought (and was still pending at the time of the complaint) against numerous workers, including trade union leaders Luis Arturo Chaves Alvarado and Johnny García Campos, for civil disobedience and contempt,and incitement to collective dereliction of public duties. These are criminal offences punishable by one or two years' imprisonment. The complainant organisation states that the trial was held despite the fact that the General Directorate for Social Rehabilitation and the ANEP had reached an agreement on 26 June 1984, in which the Directorateundertook to refrain from carrying out reprisals against the strikers.

&htab;28.&htab;In its communication dated 4 January 1988, the Government states that the criminal action referred to by the complainant organisation was brought by the judiciary, through the body attached to it, the Public Prosecutor's Office, for alleged crimes of civil disobedience and contempt of public authority, since it involved a strike in a penitentiary, which was considered to disrupt the public order and the security which should be provided to citizens. The case was subsequently tried by the Third Criminal Court of San José, which rendered judgement No. 42-87 of 6 March 1987, which concluded that there had been no disobedience, contempt or incitement to collective dereliction of public duties (punishable crimes according to sections 305, 307 and 334 of the Penal Code), since it could not be proved during the trial and in the course of public oral debate that the trade union leaders Luis Arturo Chaves Alvarado and Johnny García Campos had committed such punishable acts; they were therefore acquitted, together with the other defendants. The Government encloses a copy of the judgement.

&htab;29.&htab;Lastly, the Government emphasises that the complaint lodged by the ANEP against the Government is out of order as regards the object of such an action, because, although the plaintiff (the judiciary, through the Public Prosecutor's Office) constitutes part of the State, it does so as an authority which is independent of the executive power, and therefore the role of the Government or executive power should be to draw the attention of the judiciary to the need for obligatory compliance with Convention No. 87.

&htab;30.&htab;The Committee observes that this complaint refers to the trial of trade union leaders and officials of the General Directorate for Social Rehabilitation for their participation in the strike movement of June 1984. In this respect, the Committee notes that the judicial authority has acquitted the persons concerned and considers that this case does not call for further examination.

&htab;31.&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;32.&htab;The Committee examined this case at its meeting in February-March 1988 and submitted an interim report to the Governing Body [see 254th Report of the Committee, paras. 401-427, approved by the Governing Body at its 239th Session (February-March 1988)]. The Government subsequently sent its observations in a communication of 25 April 1988.

&htab;33.&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;34.&htab;When the Committee examined the case at its meeting of February-March 1988, one allegation remained pending, to which the Government had not replied, that the Ministry of Defence had unilaterally granted the status of military personnel to civilians working for it who therefore cannot exercise their trade union rights in accordance with Act No. 11/85 on freedom of association. Consequently the Committee requested the Government to send its observations on the matter [see 254th Report, paras. 426 and 427].

&htab;35.&htab;In its communication of 25 April 1988, the Government states that the laws and statutory regulations governing civilians working for the Military Administration are exactly the same as for other public employees in the public administration. The legislation in force on the subject, consisting of the Act on the Public Service No. 39/1984 of 2 August, and supplementary laws, does not make any provision for granting military status to public employees working for the Ministry of Defence. The allegation in the complaint by the CISF that the Ministry has "unilaterally applied the status of military personnel" to such employees is therefore groundless.

&htab;36.&htab;The Government adds that, under the legislation referred to above, civilian public employees attached to the Ministry enjoy the same trade union rights as those to which other civil servants of the public administration are entitled under the current Organic Law No. 11/1985, of 2 August, on freedom of association. The only constraint imposed by this law is the prohibition on the exercise of trade union activities within military establishments, in accordance with its third additional provision. Lastly, it has not found that, in any of the centres or establishments attached to the Ministry of Defence, the exercise of trade union or any other kind of rights by the civilian officials working for those bodies has been refused or restricted in breach of the laws in force. It should be noted that, in the last few months of 1987, the electoral process open to public employees throughout the public administration was conducted in the Ministry of Defence in a perfectly normal fashion.

&htab;37.&htab;The Committee takes note of the Government's statement denying the allegations. It notes, in particular, that civilian officials working in the Ministry of Defence enjoy the same trade union rights as other civil servants in the public administration. Moreover, it has not found that such rights have been denied or restricted in any centre or establishment of that Ministry.

&htab;38.&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;39.&htab;The World Confederation of Organisations of the Teaching Profession (WCOTP), in a communication dated 8 December 1986, presented a complaint of infringements of trade union rights against the Government of the United Kingdom. In a communication dated 22 January 1987 the WCOTP transmitted additional information in connection with the complaint on behalf of its national member union in England, Wales and Northern Ireland, the Assistant Masters and Mistresses Association. The National Union of Teachers (NUT) in a communication of 9 December 1986 also submitted a complaint of violation of trade union rights against the Government, and in a second communication dated 13 March 1987 transmitted further information in connection with the complaint. A further complaint was transmitted by the Association of Metropolitan Authorities (AMA) in a communication dated 11 December 1986 and further information was transmitted by, or on behalf of, this organisation in communications dated 14 January and 24 March 1987. The Trades Union Congress (TUC), writing with the authority of the National Union of Teachers and the National Association of Schoolmasters/Union of Women Teachers (NAS/UWT), also transmitted a complaint in a communication dated 20 January 1987. In a communication dated 5 March 1987, the International Federation of Free Teachers' Unions indicated its support for the complaint submitted by the TUC. The Association of County Councils (ACC), in a communication dated 29 April 1987, also transmitted allegations of violations of trade union rights in the United Kingdom. The Government, in a communication dated 23 October 1987, transmitted its observations in reply to the allegations made in the aforementioned complaints.

&htab;40.&htab;The Committee adjourned examination of this case on several occasions, most recently at its February 1988 meeting, where it stated that it would examine it at its current session, in the light of the comments of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;41.&htab;The United Kingdom 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;42.&htab;In its communication of 8 December 1986 the WCOTP stated that the Government of the United Kingdom had submitted to Parliament a Bill to repeal the Remuneration of Teachers Act 1965, to make temporary provision with respect to the remuneration and other conditions of employment of school teachers (Teachers' Pay and Conditions Bill 1986). The WCOTP stated that the new proposed Act would provide for temporary measures until 31 March 1990 but these could be continued for one year at a time by simple Order by the Secretary of State. The Act would concern school teachers in England and Wales and would not affect teachers in further education who would be able to continue to negotiate and conclude agreements on their salaries and working conditions through their representative unions. For teachers in primary and secondary schools the Act was intended to abolish all real possibilities to participate in the determination of terms and conditions of employment. The WCOTP alleged that, in reality, negotiations would be replaced by the power of the Secretary of State to fix by Order whatever salaries and working conditions for school teachers that he might find appropriate. An advisory committee would report to the Secretary of State and make recommendations to him. The Secretary of State, however, would direct the advisory committee and might or might not make provisions by Order in implementation of the recommendations of the committee. The fact that there would be consultation with the employers and the teachers' unions would not mean that the Secretary of State's decisions would be influenced thereby. According to the proposed legislation, the Secretary of State could even issue Orders without any recommendation from the advisory committee up to October 1987. Retroactive provisionsto 1 April 1986 could also be made until the legislation was enacted. The WCOTP pointed out that the composition of the advisory committee was in no way defined and that there was no indication that the committee would include representatives of the parties concerned; neither would the small number of members (between five and nine) allow all the different unions to be represented. The WCOTP considered these measures to be a flagrant violation of Article 4 of Convention No. 98 and Article 7 of Convention No. 151.

&htab;43.&htab;In its further communication dated 22 January 1987, the WCOTP transmitted additional information on behalf of its national member union, the Assistant Masters and Mistresses Association (AMMA). The AMMA also contended that the proposed Teachers' Pay and Conditions Act 1987 would constitute a violation of relevant international labour Conventions ratified by the United Kingdom. The AMMA explained that in the United Kingdom teachers are employed by local education authorities which have exclusive rights and obligations regarding the provision of public education services. According to the AMMA, the proposed Act sought to replace the machinery established by the 1965 Remuneration of Teachers Act for reviewing and negotiating changes in the remuneration payable to teachers by local education authorities. The AMMA explained that the 1965 Act made it the responsibility of the Secretary of State for Education to set up committees (known as Burnham Committees) comprising an independent chairman, nominees of the Secretary of State and representatives of both local education authority associations and teachers' organisations. Describing the system of negotiation of salary levels within the Burnham Committees, the AMMA pointed out that the existing system establishes only a limited role for the Secretary of State in fixing salaries. The Secretary of State could not intervene directly in the negotiation process and direct ministerial intervention was contemplated by the Act only in the event of a dispute within the committee which led to arbitration. In such a case the Secretary of State had power to set an arbitration award, but not without the affirmative resolution of both Houses of Parliament. Conversely, if there was agreement within the committee, the Secretary of State must accept it and give effect to the agreement. In essence, therefore, the 1965 Act respected the principle of voluntary collective bargaining.

&htab;44.&htab;The AMMA pointed out that the Remuneration of Teachers Act 1965 was to be repealed by clause 1 of the proposed Teachers' Pay and Conditions Act 1987. The Burnham Committee would be replaced by an advisory committee appointed by the Secretary of State at his sole discretion. This committee would examine and report to the Secretary of State on such matters relating to remuneration and other conditions of employment of school teachers in England and Wales as he might referto them. The Secretary of State was under no obligation to refer any particular matters to the committee at any time. Participation of the local education authorities and the teachers' union in the review process would be confined to receiving notice from the advisory committee affording them a "reasonable opportunity" of submitting evidence and representations on the matters referred to them by the Secretary of State. Secondly, clause 3(i) of the Bill required the Secretary of State to consult local authorities and teachers' unions before he took any action consequent on a report by the advisory committee.

&htab;45.&htab;The Secretary of State could accept, vary or reject altogether any recommendations agreed upon by the advisory committee and make "such other provision with respect to that matter as he thinks fit". Any Order made by the Secretary of State which materially departed from the advice of the advisory committee had to be approved by the resolution of both Houses of Parliament.

&htab;46.&htab;The proposed Act would make the Secretary of State the final arbiter of disputes over teachers' pay and conditions, subject to parliamentary approval. He would have the power by Order to oblige local education authorities to impose on teachers through their contracts of employment conditions of service which he had unilaterallydetermined. Clause 4(iii)(c) of the proposed Act enabled some matters specified by the Secretary of State to be left to the unions and the local education authorities.

&htab;47.&htab;The AMMA alleged that the Bill would abolish the direct representation of teachers by their unions in relation to their pay and conditions of service for at least three years. It would also deny them access to a committee which had been set up exclusively to deal with affairs related to teachers.

&htab;48.&htab;In its communication dated 9 December 1986 the National Union of Teachers (NUT) explained that there are in England and Wales six separate organisations of teachers, two of which represent head teachers only. Over the previous two years teachers in England and Wales have been engaged in a major industrial dispute with local education employers, of which there are 104 in England and Wales, over the levels of teachers' salaries and over their conditions of service. The NUT, the largest teachers' organisation in England and Wales, had played the foremost part in this dispute. In mid-November 1986 a provisional agreement was reached and signed by the representatives of four of the six teaching organisations for England and Wales representing over 300,000 teachers. The NUT pointed out that in recent years the procedure provided for under the 1965 Remuneration of Teachers Act had become discredited and some months previously a proposal had been made to abolish the existing structure and to replace it. Section 7 of the provisional agreement that had been reached in November set out the terms of the agreement between the teachers and the local education authorities on the new structure for the negotiation of pay and conditions of service. The NUT explained that the national Government had a role to play in the system of financing local government, and representatives of the United Kingdom Government had a participatory role under the negotiating structure within the terms of the 1965 Act. The NUT added that the United Kingdom Government had held observer status in the negotiations that had taken place.

&htab;49.&htab;According to the NUT, shortly prior to the commencement of the final round of negotiations which led to the provisional agreement,the Secretary of State for Education and Science threatened to impose a settlement of the dispute by statutory provision. In addition, during the final round of negotiations that intention was reaffirmed by the Secretary of State who insisted that any agreement must satisfy the Government's demands. Despite this, however, the provisional agreement was reached.

&htab;50.&htab;The NUT added that the Government, on 28 November 1986, presented a Bill to the House of Commons which sought to repeal the 1965 Act and replace it with a structure which would allow the Secretary of State to impose a settlement on the recent dispute and also to impose pay levels and structures as well as conditions of service on teachers in England and Wales without negotiation and without the agreement of teachers or their representatives.

&htab;51.&htab;In a further communication dated 13 March 1987 the NUT stated that the Teachers' Pay and Conditions Bill had now become law and that during its passage through Parliament only slight amendments had been made and its principal effects were the same as the Bill in its original form intended. The NUT added that the Secretary of State had also published a draft Order under section 3 of the Act, by which he intended to bring into effect, by unilateral imposition, a new salary structure and new salary scales for primary and secondary teachers in England and Wales, together with new conditions of employment. The draft Order was published on 2 March 1987 and the Secretary of State had allowed only until 23 March 1987 for consultation as required under section 3(7) of the Act. The NUT stated that, along with other organisations of teachers, it had written to the Secretary of State seeking the restoration of full negotiating rights in time for negotiation to take place prior to the date for the settlement of pay levels for April 1988. It added that industrial action against the removal of negotiating rights and the imposition of conditions of employment had already commenced.

&htab;52.&htab;The NUT pointed out that the terms of the Order, in so far as they related to the remuneration of teachers, were very much at variance with the collectively bargained agreement achieved in November 1986. The conditions of employment elements of the proposed Order also differed significantly from the November 1986 agreement. The NUT provided certain details concerning the manner in which they considered the draft Order to be at variance with the previously negotiated agreement.

&htab;53.&htab;The Association of Metropolitan Authorities (AMA), in its communication dated 11 December 1986, stated that it represented 56 local education authorities in England and was an industrial association of employers. Referring to the Teachers' Pay and Conditions Bill introduced into Parliament by the Government, the AMA stated that this Bill, if enacted, would remove the existing arrangements whereby teachers and their employers, the local education authorities, voluntarily negotiated the terms and conditions of employment of teachers through machinery established partly under statute and partly by agreement. The AMA added that the rights of teachers and their employers would, if the Bill were enacted, be severely restricted and that, in future, they would only be afforded a reasonable opportunity of submitting evidence and representations to an advisory board and they would only be consulted by the Secretary of State on any report submitted to him by that committee. In the view of the AMA this proposed legislation was directly contrary to the Government's obligations under international labour Conventions.

&htab;54.&htab;The Trades Union Congress (TUC), in its communication dated 20 January 1987, writing with the authority of the National Union of Teachers and the National Association of Schoolmasters/Union of Women Teachers, alleged that the provisions of the Teachers' Pay and Conditions Bill breached international commitments entered into by the United Kingdom Government and threatened the exercise of the right to bargain collectively. By this proposed legislation, the Government intended to set aside the machinery for negotiating teachers' pay and gave the Secretary of State power to impose pay and other conditions on teachers. The TUC added that this action could only cause further damage to industrial relations and to the morale of teachers. The Bill would also enable the Government to introduce different rates of pay for teachers in different areas of England and Wales. These measures would be entirely incompatible with voluntary negotiation. The TUC submitted a copy of proposals it had made to the Secretary of State that he should participate in a national joint council which, in the view of the TUC, should be established to determine both pay and conditions of service.

&htab;55.&htab;The Association of County Councils (ACC) in its communication dated 29 April 1987 stated that it represented the interests of 46 county councils in England and Wales who in turn employed all the teaching staff in the education system in the counties in England and Wales. The ACC complained that the Teachers' Pay and Conditions Act 1987, which became law on 2 March 1987, brought to an end the existing arrangements for the joint negotiation of pay between teachers and their employers. The ACC described the various aspects of the Act which, in its view, were incompatible with the relevant Conventions of the ILO.

&htab;56.&htab;In its reply communicated to the ILO on 23 October 1987, the United Kingdom Government explains that the Teachers' Pay and Conditions Act 1987 covers teachers in schools in England and Wales. Teachers are employed either by local authorities or by the governors of the schools (usually Church schools), but in both cases they are paid by local authorities. Central Government provides some 47 per cent of the funds of local authorities through grants. The Secretary of State for Education and Science has, by virtue of the Education Act 1944, a duty to promote the education of the people of England and Wales and the progressive development of institutions devoted to that purpose, and to secure the effective execution of the national policy for providing a varied and comprehensive educational service in every area. Separate educational administrative systems and school structures apply in Scotland and Northern Ireland and, the Government explains, the existing negotiating arrangements in Scotland and Northern Ireland did not break down and therefore remain in place. Teachers in England and Wales are represented by six major unions having differing aims and objectives which compete with one another for membership over much of the range of the teaching profession, as well as a number of smaller unions; whereas in Scotland one union represents over 80 per cent of teachers.

&htab;57.&htab;The previous statutory negotiating arrangements for determining teachers' pay were established by the Remuneration of Teachers Act 1965. That Act required the Secretary of State for Education and Science to establish one or more committees (known as the Burnham Committees) on which management and teachers would be represented and which reviewed pay when they thought fit or when the Secretary of State required them to do so. When the Committee made a recommendation, the Secretary of State was required to give statutory effect to it, even if he considered the recommendation unacceptable. When the revised rates of pay had been promulgated and given effect by Order, they became binding upon local education authorities. In general, the Secretary of State had no power to vary recommendations of the Committee or to make an Order in the absence of such recommendations.

&htab;58.&htab;Where an agreement could not be reached, the Secretary of State was required to make arrangements for arbitration following consultation with the bodies represented on the Committee. The 1965 Act required the Secretary of State to give statutory effect to any arbitration awards as though they were recommendations of the Burnham Committee, unless each House of Parliament resolved that the national economic circumstances required that effect should not be given to the recommendations of the arbitrators, in which case the Secretary of State should then, after consultation with the relevant Burnham Committee, determine what, if any, changes in the relevant remunerationof teachers were appropriate and make an Order accordingly.

&htab;59.&htab;In practice, the local authorities and teachers could not ignore the views of the Secretary of State, especially his concern for the financial implications of any settlement, as the Government was responsible for planning public expenditure as a whole and directly funded almost half the salary bill for teachers through grants to local authorities. Therefore within the Management Panel of the Burnham Committee a voluntary agreement operated from 1965 until July 1985 under which no pay offer to which the Secretary of State objected on grounds of total cost could be made. The voting arrangements in the Burnham Committee were such that a pay offer which the Secretary of State opposed was unlikely to be made to the teachers by the Management Panel.

&htab;60.&htab;The Burnham Committee negotiated only about pay. Other conditions of service were negotiated directly between employers and teachers in another, non-statutory committee.

&htab;61.&htab;The Government provides detailed information on the pay negotiations that took place in 1985 and 1986 and explains the major difficulties that arose in reaching agreement through the existing machinery. It was against the background of these difficulties that, on 28 November 1986, the Secretary of State for Education and Science introduced a Bill into Parliament to allow him to implement his own proposals for a revised salary structure and new contractual duties subject to the acceptance of such proposals by Parliament. The Bill also abolished the Burnham Committee and made arrangements for an Interim Advisory Committee to make recommendations to the Secretary of State about teachers' pay and other conditions of employment. The Secretary of State, however, did not close the door to a negotiated settlement and stated that he was prepared to meet the local authorities and the unions to discuss the situation.

&htab;62.&htab;However, continues the Government, any hopes of a negotiated settlement disappeared as two of the four unions which signed the agreement on 21 November 1986 failed to ratify it after consulting their members. This meant that the conditional agreement between the local authorities and the unions was supported by only two of the six unions.

&htab;63.&htab;The Government states that the Bill completed all stages of Parliament and became law on 2 March 1987, and the Secretary of State announced that he was going to use the new powers to implement a settlement and set out new conditions of employment. The main provisions were to increase teachers' salaries by an average of 8.2 per cent on 1 January 1987 and a further 8.2 per cent on 1 October 1987. In addition, the settlement provided for incentive allowances to be introduced over a period of three years from October 1987. Regarding other conditions of employment, the Secretary of State provided for a list of duties, specified teaching hours and a requirement to cover for absent colleagues for up to three days to be incorporated in the contract of employment.

&htab;64.&htab;The Secretary of State published a draft Order in March providing for the first stage of the pay increase and the new contractual duties following consultations with the unions and the local authority associations as required under the Act. In these consultations four of the six unions took part as well as the local authority associations and the Churches; as a result 34 changes were made in the draft Order which finally came into force on 30 April 1987. It was debated in the House of Commons on 5 May 1987 when a motion to annul the Order was defeated.

&htab;65.&htab;The Government explains that the two largest unions, the NUT and the NAS/UWT, continued to mount industrial action which was now directed against the withdrawal of the negotiating machinery. A series of half-day strikes continued in selected areas until 10 June 1987, after which date the NUT suspended its action, but the NAS/UWT called further action in 36 local authorites in the last two weeks of the summer term.

&htab;66.&htab;On 26 June 1987 the Secretary of State published a second draft Order and a draft document to replace the Burnham Document which had set out arrangements for teachers' pay under the old system. Following further consultations, some 200 changes were made to the draft Document and a final Document was published on 6 August 1987. On this occasion all the main teacher unions took part in the consultations. An Order implementing the provisions of the Document was also made on 6 August and came into force on 1 October 1987.

&htab;67.&htab;On 22 July 1987 the Government announced the membership of the Interim Advisory Committee on School Teachers' Pay and Conditions. Its Chairman would be the Vice Chancellor of the Cranfield Institute of Technology and its members would include two persons who had been teachers, as well as the recently retired Deputy General Secretary of the Trades Union Congress. In the view of the Government, such membership fulfilled the Government's commitment that the Committee would be made up of independent-minded people.

&htab;68.&htab;The Government argues that the difficulties encountered in 1985 and 1986 were the final demonstration of the failure of machinery that had become discredited. It was clear that the Burnham machinery could no longer produce negotiated settlements that were acceptable to all parties concerned - teachers, local authorities and the Government.

&htab;69.&htab;The conditional agreement that had finally been signed between the local authorities and four of the six unions (but in the end ratified by only two unions) had not achieved the objectives that the Government was seeking on a number of crucial issues. In particular, the proposed salary structure did little to reward skill, ability and responsibility. It compressed existing pay differentials and the monetary value of responsibility awards was too small in comparison with the top of the unpromoted teacher salary scale. In sum, the conditional agreement finally reached after six months' intensive negotiations including the assistance of the Advisory Conciliation and Arbitration Service, did not take sufficient account of the need for better teachers and better quality education and of the Government's contribution to the cost of teachers' pay. It also did not meet with the approval of the majority of teachers' unions, including the head teachers who have the responsibility for managing the schools.

&htab;70.&htab;The Burnham machinery had major flaws. One of these was the restriction of negotiations to pay, with other terms and conditions left for discussion in a voluntary body. It was thus impossible to consider pay and other terms and conditions together in one body, an arrangement that was almost unique in the whole range of public service negotiations. In addition, the Government had no influence on teachers' terms and conditions other than pay since it was not represented in the voluntary body and since July 1985 the Secretary of State had relatively little influence over pay determination. The Government judges this situation inconsistent with the Secretary of State's statutory responsibilities for school education and according to the Government it was not satisfactory that the taxpayer and Government should have no say in what they were paying for if they were paying half the bill.

&htab;71.&htab;The local authorities themselves had recognised that the Burnham machinery was structurally deficient and had called for its replacement. The Secretary of the Local Authorities Conditions and Services Advisory Board had written to the Secretary of State for Education in February 1986 making a number of criticisms of the Burnham machinery. Some of the teachers' unions had also publicly acknowledged that the Burnham arrangements were not satisfactory. The widespread failure of Burnham and the need for its replacement were also recognised by such bodies as the independent Audit Commission, which, in a report, showed that the Burnham Committee had not worked satisfactorily compared with other local authority negotiating bodies and argued that the Committee and voluntary body should be replaced.

&htab;72.&htab;In addition to these structural flaws, the parties had in recent years failed to negotiate pay agreements through this machinery and, according to the Government, the major reason for this failure was the division amongst the representatives of the teachers' unions and amongst the representatives of the local authorities. Teachers' representation on the Teachers' Panel of Burnham was fragmented among six unions. Before 1985 the National Union of Teachers had used its majority vote to have its own views adopted at the expense of the other unions, but after the NUT lost its majority there was little prospect of the various unions reaching an agreement acceptable to the majority of unions and teachers. Accordingly, even the agreement that was finally signed in November 1986 by the local authorities and representatives of four of the six unions was in the end ratified by only two unions. The Government believed that these continuing conditions among the unions made it very difficult for them to achieve consensus on the requirements of pay and conditions of service which were generally agreed to be necessary. Political divisions among the local authorities' representatives also made it difficult to achieve any agreement between the parties.

&htab;73.&htab;The Government believed, as did the majority of local authorities and unions, that it was not possible merely to reform the Burnham negotiating machinery. The negotiations of the previous six months showed that the inherent weaknesses of the Burnham machinery, its restriction to cover only pay bargaining and the unbridgeable divisions among the unions meant that it had to be replaced. The Government believed that it had no alternative but to legislate to introduce new interim arrangements for determining teachers' pay and conditions. The proposed new voluntary negotiating machinery, provisionally accepted by the local authorities and the unions, suffered from a number of drawbacks which the Government believed would not enable it to negotiate settlements acceptable to all the parties. In particular this arrangement excluded any active role for the Government which funded almost half of local authority expenditure including that of teachers' salaries. There was no assurance that the proposed new voluntary arrangements would be acceptable to the majority of teachers and there was no reason to believe in the circumstances that differences and divisions of representation on the teachers' side would be more easily reconciled in a voluntary framework than under the statutory Burnham machinery.

&htab;74.&htab;According to the Government radical changes were clearly necessary. The 1987 Act provided for the temporary arrangement of a statutory advisory committee. It repealed the Remuneration of Teachers Act 1965 and thus abolished the Burnham Committees. It provided that the remuneration of teachers should continue to be determined and paid to teachers by local education authorities in accordance with the pay scales and other provisions in force immediately before the passing of the Act until they are superseded by provisions made in the new Act in the case of school teachers, or agreed between teachers and their employers in the case of teachers in further education. The Government points out that the Act will expire in 1990 unless extended by an affirmative resolution of both Houses of Parliament.

&htab;75.&htab;The Act places a duty on the Secretary of State for Education and Science to appoint an Interim Advisory Committee on School Teachers' Pay and Conditions to replace the previous arrangements. This Committee shall consist of between five and nine members including the Chairman. The Committee must consult before reporting on any matter relating to pay and other conditions of employment of school teachers referred to them by the Secretary of State, and its reports must be published. The Secretary of State is given the power to put recommendations into effect after consulting the relevant parties. The Order made by the Secretary of State must be voted by both Houses of Parliament following which local authorities have a legal obligation to pay teachers in accordance with the scales and other provisions set out in the Order. The provisions on other conditions of employment will have effect as terms of teachers' contracts. The Government explains that the Secretary of State for Education and Science was able to make orders coming into force on or before 1 October 1987 without a report from the Interim Advisory Committee but subject to negative resolution of both Houses of Parliament after consulting the parties concerned.

&htab;76.&htab;After 1 October 1987, the Secretary of State will be able to refer matters concerned with pay and the terms and conditions of employment of teachers to the Interim Advisory Committee. The Secretary of State can give directions on the matters which the Committee will examine and these directions can include consideration of the financing and other constraints which will be relevant to the Committee's deliberations. Following a reference from the Secretary of State, the Interim Advisory Committee will take evidence from all interested parties, and local authorities, the unions, the Churches and/or individual teachers will be able to put forward evidence and representations on all matters under consideration. The Secretary of State is free to accept, modify or reject the independent recommendations made by the Committee. However, before reaching a decision, the Secretary of State must by statute consult the unions and the local authorities in order to ascertain their views. Following these consultations, the Secretary of State has the legal power to put his decisions into effect, subject to approval of both Houses of Parliament.

&htab;77.&htab;As stated above, in the period until 1 October 1987, the Secretary of State had the power to amend pay and conditions without seeking the advice of the Interim Advisory Committee but subject to thenegative resolution of both Houses of Parliament. During this period the Secretary of State made two Orders. During the consultative process on the first Order, four out of the six unions consulted took part as well as the local authority associations and the Churches. Thirty-four changes were made to the draft Order as a result of such consultation. All six unions took part in consultations on the second Order and some 200 changes were made to the draft document.

&htab;78. The Government has repeatedly emphasised the temporary nature of the Interim Advisory Committee.

&htab;79.&htab;As regards the application of international labour Conventions involved in this case, the Government believes that Convention No. 151 is the appropriate one to be considered. It repeats the arguments it put forward in an earlier case concerning the United Kingdom, that Conventions Nos. 87, 98 and 151 need to be read together. The Government contends that teachers are persons employed by public authorities and therefore come within the scope of ConventionNo. 151. The provisions of this Convention have, according to the Government, overtaken the general provisions in Convention No. 98 as far as collective bargaining for public service workers is concerned. The Government admits that teachers are not public servants engaged in the administration of the State and that Article 6 does not exclude them from the scope of Convention No. 98; it likewise admits that Convention No. 151 applies to persons employed by the public authorities "to the extent that more favourable provisions in other international labour Conventions are not applicable to them". But it considers that Article 7 of Convention No. 151 is not less favourable than Article 4 of Convention No. 98. Article 4 of Convention No. 98, maintains the Government, is more apt to describe machinery for voluntary negotiations between private sector employers and workers, while Article 7 of Convention No. 151 is more apt to describe the procedures for determining terms and conditions of employment of persons in public sector employment. The Government believes that setting up an Interim Advisory Committee is compatible with Article 7 of Convention No. 151, which clearly envisages arrangements other than collective bargaining whereby unions can participate in the determination of employment conditions. The new system provides plenty of opportunity for the unions and local authorities to participate in such determination. Finally, the Government considers that if it is decided that Convention No. 98 is applicable, the Government is not in breach of Article 4. Since the old machinery has broken down and prolonged industrial action has caused disruption in the educational system, the Government has been forced to introduce new arrangements. Thus, according to the Government, circumstances justify taking such exceptional measures for a reasonable time in accordance with the Committee's principles on the subject.

&htab;80.&htab;The Committee notes that all the complaints in this case relate to the alleged infringement of standards and principles contained in Conventions Nos. 98 and 151, both of which have been ratified by the United Kingdom. The allegations relate to the infringement of one or other of these Conventions or of both.

&htab;81.&htab;The Committee has examined this case having particular regard to the rights and obligations spelled out in international labour Conventions and other instruments adopted in this field and also to the principles laid down by the supervisory bodies of the ILO on the subject. As it pointed out at its February 1988 meeting, the Committee notes in particular the comments made by the Committee of Experts on the Application of Conventions and Recommendations at its March 1988 Session.

&htab;82.&htab;The only category of workers involved in this case is that of teachers employed by local authorities in England and Wales. In the view of the Committee, such workers, not being public servants engaged in the administration of the State, fall within the scope of Convention No. 98, and, in particular, of Article 4, which provides that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements". The Government, in its comments, accepts this view.

&htab;83.&htab;As regards Convention No. 151, it was adopted by the International Labour Conference in order to guarantee protection of the right to organise of public servants in general, defined as "all persons employed by public authorities", including those categories (with the exception of the police and armed forces) who were excluded from the scope of Convention No. 98 (Article 6). In the opinion of the Committee, it is clear that Convention No. 151, and in particular Article 7, which provides that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methodsas will allow representatives of public employees to participate in the determination of these matters", is applicable to the category of workers involved in he present case, which, again, is not contested by the Government of the United Kingdom in its communications.

&htab;84.&htab;The Committee observes that the Government, in its reply, considers that this case falls within the scope of Convention No. 151. It contends that the specific provisions in Convention No. 151 have overtaken those of Convention No. 98. In the Government'sopinion, Article 4 of Convention No. 98 is more apt to describe machinery for voluntary negotiations in the private sector, while Article 7 of Convention No. 151 is more apt to describe procedures for determining terms and conditions of employment in the public sector. Referring to Article 1, paragraph 1, of Convention No. 151, which states that this Convention applies to all persons employed by public authorities "to the extent that more favourable provisions in other international labour Conventions are not applicable to them", the Government considers that Article 7 of Convention No. 151 is not less favourable than Convention No. 98.

&htab;85.&htab;The Committee, for its part, considers that Article 1, paragraph 1, of Convention No. 151 implies that the rights guaranteed in Convention No. 98 cannot be denied or restricted merely by referring to Convention No. 151. In the case of a country such as the United Kingdom, which has ratified both Conventions, and a branch of activity such as that of public education, where both Conventions are applicable, it therefore has to determine whether Article 4 of Convention No. 98 offers more favourable provisions to workers than Article 7 of Convention No. 151. The Committee, as has the Committee of Experts, considers that "Article 4 of Convention No. 98 offers more favourable provisions since it includes the concept of voluntary negotiation and the independence of the negotiating parties; it should therefore be applicable in preference to Article 7 of ConventionNo. 151, which calls upon the public authorities to promote collective bargaining either by means of procedures that make such bargaining possible, or by such other methods as will allow public servants to participate in the determination of their terms and conditions of employment". Therefore, the question before the Committee in this case is to determine whether the new procedures outlined in the Teachers' Pay and Conditions Act, 1987 are in conformity or not with Article 4 of Convention No. 98.

&htab;86.&htab;In this respect, the Committee notes that, under the terms of the new Act, the Secretary of State is obliged to appoint an Interim Advisory Committee consisting of between five and nine members, including the Chairman. On receipt of a reference to it by the Secretary of State, this Committee must consult or take evidence from all interested parties before arriving at its own independent recommendations. The Secretary of State is free to accept, modify or reject the advice given to him by the Committee. However, before deciding whether or not to accept the recommendations of the Committee, the Secretary of State must, by law, consult the trade unions and local authorities to ascertain their views.

&htab;87.&htab;While noting that all of the parties concerned and, in particular, teachers' organisations, are thus consulted twice (by the Advisory Committee and by the Secretary of State), the Committee must, however, point out that the Secretary of State is free to reach a final decision and that this system cannot therefore be considered as instituting a procedure of voluntary negotiation of collective agreements as prescribed in Article 4 of Convention No. 98. The Committee also points out that the new legislation is scheduled to expire on 31 March 1990, but that it may be extended from one year to the next merely by order of the Secretary of State and could therefore exceed a period which may be termed reasonable. In these circumstances, the Committee can only conclude, as did the Committee of Experts on the Application of Conventions and Recommendations, that the legislation is not in conformity with Convention No. 98.

&htab;88.&htab;Finally, the Committee notes that, throughout its communications, the Government has stressed the temporary nature of the Interim Advisory Committee and that it intends to establish permanent machinery following consultations with all interested parties. As a basis for such consultations, the Government has published a consultative document setting out proposals for new and permanent arrangements to determine pay and conditions of primary and secondary-school teachers. The Government has requested responses to this consultative document by 29 January 1988. The Committee is not called upon to examine the proposals contained in this consultative document. It can only trust that the consultations that are under way and the discussions on a permanent system will give the Government the opportunity to make the necessary legislative amendments to give effect to the fundamental principle of the voluntary negotiation of collective agreements, as contained in Convention No. 98.

&htab;89.&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 system for the determination of the terms and conditions of employment of teachers provided for in the Teachers' Pay and Conditions Act 1987 - which is for the moment in force until 1990 - is not in conformity with Article 4 of Convention No. 98. (b) The Committee trusts that the consultations that are under way and the discussions on a permanent system will give the Government the opportunity to make the necessary legislative amendments to give effect to the fundamental principle of the voluntary negotiation of collective agreements, as contained in Convention No. 98.

(c) The Committee again draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations so that it may follow developments in the situation.

&htab;90.&htab;The Gaza Building Workers' and Carpenters' Union and the Gaza Commercial and Public Service Workers' Union presented a complaint of violation of trade union rights in the Gaza Strip, Israeli-occupied territory, in a communication dated 2 June 1987. The complainants supplied further information in a letter of 23 July 1987.

&htab;91.&htab;The Government submitted its observations in a communication dated 19 April 1988.

&htab;92.&htab;Israel 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;93.&htab;In their communication of 2 June 1987, the Gaza Building Workers' and Carpenters' Union and the Gaza Commercial and Public Service Workers' Union complain that they have been prevented from meeting and electing new executive committees. It is alleged that the executive committee of the Gaza Building Workers' and Carpenters' Union sent a letter to the Officer for Labour Affairs in the Gaza Strip notifying him that the union intended to hold its general assembly on 21 February 1987 and, in accordance with the union's by-laws and the Egyptian Labour Unions Law (No. 331 of 1954, an English language version of which is supplied), still in force in Gaza, to hold elections for new trade union officers. On 18 February the union was notified in a letter from the military authorities that the meeting and new elections were prohibited. The complainants state that elections were held, in accordance with the above-mentioned Act, despite the ban. The Commercial and Public Service Workers' Union likewise informed the military authorities of its intention to hold a general assembly and elect new trade union officers on 4 April 1987, which also met with prohibition by the authorities. On that day the military authorities are alleged by the complainants to have put a curfew on the area around the union building and detained several union officers that morning. Despite these measures aimed at preventing the union members from voting, the elections were held successfully in another place.

&htab;94.&htab;Following the elections, in accordance with the unions' by-laws, each of the newly elected executive committees of the two unions nominated two board members to represent them in the Federation Council. The complainants add that the Israeli authorities were also notified, in writing, of the names of the new executive committee members and those chosen to represent them in the Federation Council.

&htab;95.&htab;In a letter dated 17 March 1987, the Israeli military authorities informed the head of the Federation that they refused to accept the representatives chosen by the Building Workers' and Carpenters' Union, Mr. Tawfiq al-Mahbouh and Mr. Ayesh Obeid, stating that they did not agree to the holding of the elections. On 26 May 1987, the authorities reminded the Federation of their refusal and requested it not to make any further amendments to the membership of the Council without prior agreement (a translation of the letter in question is appended to the complaint). Finally, the authorities sent letters on 26 and 27 May 1987 to the eight members of the new executive committees barring them from all union activities; the unionists were warned that the authorities would take legal action against them if they did not cease their union activities.

&htab;96.&htab;The complainants state that the banning of the unionists from union membership runs counter to Article 2 of Convention No. 87 and that the prohibition of elections and refusal to recognise the new elected officers constitutes government intervention in trade union affairs.

&htab;97.&htab;As regards the eight trade union leaders who were barred from all union activities by the Israeli authorities, the complainants mention in their allegations that these measures were taken under section 7(2) of Law No. 331 of 1954, which provides that any person who has committed a crime has no right to be a member of a trade union or to hold a leading post on an executive committee or a workers' federation, and that the authorities stated in their communications that these persons had committed a crime. The complainants state further that five of the unionists were notified in the same letter that they were not actively engaged in the occupation represented by their trade union and that they should be barred from trade union activity under section 3 of Law No. 331. (The text of both types of letter is appended to the complaint.) The complainants allege that the authorities' extension of the scope of section 7 to all union activities is arbitrary and illegal, since the prohibition contained in this provision only covers membership on the executive committee of a trade union. The complainants add that none of the eight union leaders banned from trade union activities has been convicted of a crime as defined in section 7 of the above-mentioned law. Two of them, Mr. Ziad Ashour and Mr. Ilias al-Jeldeh, have never been sentenced for any offence, while the other six have only been sentenced for "membership in an illegal organisation" as a result of their alleged support for the Palestinian Liberation Organisation. The position of the complainants is that the unionists have been disqualified because of their political opposition to the Israeli occupation, and not because they pose any risk to the proper exercise of trade union rights.

&htab;98.&htab;As the complainants denounce the Israeli authorities' interpretation of section 7, they likewise reject their interpretation of section 3 of Law No. 331 as regards the term "worker", which serves as a basis for barring certain unionists from union membership. According to the complainants, section 3 of this Law contains a broad definition of the term "worker" and excludes from its scope persons employed in public services (government, municipal councils or the military) and agents representing employers, denying them the right of association. The complainants, therefore, consider that the authorities' barring of the trade unionists from all union activities runs counter to the law, since only one of the eight persons concerned,Mr. Mustafa Burbar, could be considered not to be a worker under the terms of the Law, although the complainants consider that he is a worker, albeit a self-employed one; the complainants state further that most of the union leaders who held their positions prior to the last elections and were recognised by the authorities were not real workers under the provisions of section 3. (A list is supplied of the trade union posts and occupations of some of the former union leaders.)

&htab;99.&htab;The complainant organisations state that the law does not provide for any proper appeal against the decisions of the authorities and that the only appeal possible is to the Israeli High Court which is not competent to rule on the substance of the case but only to verify whether the legal procedures have been followed in an action taken by the authorities.

&htab;100.&htab;In conclusion, the complainants recall that the Gaza unions have been inactive since 1967, as the authorities continually restrict the scope of their activities, and that their attempts to resume their activities have met with severe oppression, which runs counter to basic trade union rights.

&htab;101.&htab;The complainants' communication of 23 July 1987 lists further interference allegedly perpetuated by the Israeli occupation forces in the affairs of Gaza unions: repeated summoning of unionists for interrogation, detention of union leaders (for example, the Secretary-General of the Commercial and Public Service Workers' Union (CPSWU)), threats and other harassment.

&htab;102.&htab;The complainants describe in detail the events of 2 June 1987: an officer, known to the CPSWU as "Colonel Rubin", accompanied by a group of officers and soldiers stormed the headquarters of the union ordering unionists inside the building to freeze and to present their identity cards. The names of four workers were written down and one of them was asked but received no written order to appear at the Colonel's office. The Colonel threatened those present to stay away from the union and challenged the union's executive secretary, Mr. Hussein al-Jamal, as to his right to be there since the military had banned him from any trade union activities. On 8 June, CPSWU member Hussein Abu-Nar was summoned to the military government's headquarters in Deir al-Balah where he was forced to wait in the hot sun from early morning to 2 p.m. when he was told by an Israeli officerto return the next day. On 9 June he returned and was detained from 8 a.m. to 4 p.m. when he was brought before the Military Governor who handed him a written order that prevented him from practising any union activities under section 7 of Military Order No. 331.

&htab;103.&htab;According to the complainants, the following unionists were also detained by the military on 9 June: Ayesh Obeid; Tawfiq al-Mabhouh and Mustafa al-Burbar. They were released - with warnings to give up their union activities - after eight hours' detention. Also on the same day, a group of Israeli soldiers, led by an officer known as "Captain Abu-Salim", arrived at the bookshop where Mustafa al-Burbar, member of the CPSWU works. As he was not there, they went to his home, but he was not there either. Then they went back to the bookshop and conducted a thorough search and threatened to return. The complainants describe the events of 23 June 1987: Ayesh Obeid, Tawfiq al-Mabhouh, Mustafa al-Burbar, along with Suhail Abu-Ala, a member of the Building Workers' and Carpenters' Union, were arrested a second time and detained in the "Ansar 2" detention centre. They were released on 24 June 1987 at 11 p.m.

&htab;104.&htab;According to the complainants, on 25 June 1987 Hussein al-Jamal was summoned to the police station in Gaza City for interrogation. He went in the morning but was asked to return in the afternoon. When he arrived in the afternoon he was interrogated on the charge that he had violated the order against him by his participation in a meeting in the Union headquarters. Al-Jamal denied that he had done anything illegal, but was charged, then released on bail, and is now awaiting trial. On the same day Hussein Abu-Nar was again summoned, this time to the Gaza police station for interrogation where he was detained without being questioned.

&htab;105.&htab;Lastly, the complainants state that on 6 July 1987 Tawfiq al-Mabhouh was summoned to the police station in Gaza City; his interrogation was postponed until further notice. On the same day, Hussein Abu-Nar was again summoned to the Gaza police station, he was charged with violating the order against him to cease all trade union activities because he was said to have participated in a meeting in the union headquarters. Abu-Nar denied the charges on the basis that the order was incorrect and had no basis under local or international labour laws or standards. The complainants fear that these practices will continue. They hope that the ILO will support them in confrontingthe practices of the military authorities, so that they can continue to work and provide their workers with the necessary services.

&htab;106.&htab;In its communication of 19 April 1988, the Government of Israel states that it recognises the principle of freedom of association, and its obligation to fulfil the term of Conventions Nos. 87 and 98 to which it is a party. These principles are the underlying basis of the legislation and activities of the different branches of the Israeli Government in all that relates to the rights of workers and unions.

&htab;107.&htab;It states that in its activities in Judea and Samaria, the Government is fully aware of the principles and values which guide democratic governments in the free world in their relations with workers. No prohibitions or restrictions have been imposed on trade unions in Judea and Samaria on account of bona fide activities. According to the Government, whenever any steps have been taken against trade unions or their activities, this has been on account of terrorist acts, subversion, or other illegal activities, which have absolutely no connection with the declared mandate of trade unions.

&htab;108.&htab;As regards the background to the present case, it explains that the Workers' Association in Gaza, which unites the operations of six trade unions, was established in 1965, during the period of Egyptian rule. They are: the Commercial and Public Service Workers' Union; the Drivers' Union; the Building Workers' and Carpenters' Union; the Sewing Workers' Union; the Union of Agricultural Workers and the Union of Metal Workers. The Association froze its activities between 1967 and 1979, when it started functioning again in accordance with the law. On 25 October 1984 an attempt was made on its leader's life by members of the terrorist "Fatah" organisation, in order to gain control of the Association. After that, the Association became a focus of activity for the various terrorist organisations, and a focus of rivalry amongst them for positions of power in the organisation. In spite of this, the administration did not take advantage of the breaches of the Egyptian Law that regulates the conduct of trade unions in Gaza and made no use of its legal authority to disband either the Workers' Association or unions belonging to it.

&htab;109.&htab;The Israeli administration in Gaza acts in these matters in accordance with the Trade Unions Law (No. 331) enacted by Egypt on 15 November 1954. Every trade union in the Gaza area is obliged to operate in accordance with this Law, which contains clear provisions regarding the holding and conduct of elections for trade unions so as to ensure that there are no restrictions on the right of democratic election by workers, as provided by Conventions Nos. 87 and 98. According to the Government, the unions that have made the complaint violated the following two sections of the Law: (a) section 8(a) which requires that elections should be secret, and conducted on the basis of equality; and (b) section 7(2) which prohibits anyone found guilty of a felony from being a member of the executive council of the union.

&htab;110.&htab;The Government states that the elections for the executives of the two complainant unions were held by using the "Tazkiyeh" unanimous oral election of a list of candidates agreed upon in advance,with only one candidate for each position. It considers that this system is contrary to the concept underlying the method of election described in section 8(a) that the voters should elect candidates by a genuine exercise of their free will, and not simply rubber-stamp a predetermined list of persons for specific tasks. It is also of the opinion that the principle of secrecy was not maintained during the elections carried out by the trade unions. It claims that there were never any real elections at all, but only appointments through an exercise of force majeure . These so-called "elections" were carried out despite the express prohibition of the Administration on the grounds of failure to comply with certain other provisions of the Law, as explained below.

&htab;111.&htab;According to the Government, at least seven persons who had been found guilty of felonies were elected to the executive council of unions that have filed the complaint. It is obvious that the characterisation of an act as a criminal offence whether of an ordinary or a security nature, cannot be affected by whatever ideological motives might have prompted the accused to commit them. The Government explains that:

- Ayesh Obeid was elected to the executive council of the Union of Carpenters and Builders but had been found guilty of membership of a hostile organisation, and of planting explosive devices, and was sentenced to ten years' imprisonment (Military Court Case No. 71/81);

- Jamil Ahmed Said Jaras was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of an offence against the security of the region, and was sentenced to eight months' imprisonment (Military Court Case No. 1180/82);

- Tawfiq al-Mabhouh was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of the offence of membership of a hostile organisation, and was sentenced to eight months' imprisonment (Gaza Military Court Case No. 775/73);

- Ziad Sabhi Abdallah Ashour was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of the offence of incitement (Military Court Case No. 21/86); - Hussein Mahmad al-Jamal was elected to the executive council of the CPSWU, but had been found guilty of the offence of membership of a hostile organisation and was sentenced to five years' imprisonment (Military Court Case No. 678/75);

- Yehia Dib Salam Obeid was elected to the council of the CPSWU, but had been found guilty of offences of contact with a hostile organisation and carrying out services for a hostile organisation (Military Court Case No. 446/82);

- Hussein Abu-Nar was elected to the council of CPSWU, but had been found guilty of attempted murder and of planting explosive devices, and was sentenced to ten years' imprisonment (Military Court Case No. 395/71).

&htab;112.&htab;The Government states that a police investigation was opened against three of these seven persons (Tawfik al-Mabhouh, Hussein al-Jamal and Hussein Abu-Nar) on the suspicion that offences had been committed under section 7 of the Egyptian Law (which prohibits anyone found guilty of a criminal offence from being a member of the executivecouncil of a trade union). A complaint on this was lodged with the Gaza police after the three persons had been warned to give up their membership in view of the offences they had committed. According to the Government, when they refused to do so, File No. P.A. 1411/87 was opened against them, which led to the opening of Military Prosecution file No. 1676/87. No charge has yet been issued concerning these three persons.

&htab;113.&htab;The Government adds that as regards the legality of previously imprisoned persons who continue to serve as members of the executive council of trade unions, their election has two consequences:first, they are committing a criminal offence for which they are liable to punishment (hence the police investigation already opened against the three above-mentioned persons); and secondly, the union itself which elects someone who had in the past been sentenced for a felony violates the provisions of section 7 of the Law and such a violation can (under section 14(c) of the Law) serve as grounds for annulling the union's registration.

&htab;114.&htab;In addition, the Government claims that these unions systematically violate the provisions of the Trade Unions Law in the following respects.

&htab;115.&htab;Section 18(d) states that "unions may not engage in political or religious affairs", and this ban on political involvement is connected with the concept expressed in section 5, namely that the aim of establishing trade unions is mutual assistance in furthering the professional interests of members and their material and social condition. Despite this, on 23 July 1986, the Workers' Association (described above) adopted a resolution recognising the PLO as the sole representative of the Palestinian people, and rejecting United Nations Security Council Resolution No. 242.

&htab;116.&htab;Section 21 requires every union to submit to the Officer for Labour Affairs an annual balance sheet at every financial year, certified by an accountant. With the exception of the Commercial and Public Service Workers' Union, none of the unions prepare or submit such balance sheets. Section 25 obliges every union to notify the Officer for Labour Affairs of every session of the General Assembly and section 21 also requires every union to transmit to the Officer for Labour Affairs each year a copy of the minutes of the General Assembly. Despite this, the unions do not do so.

&htab;117.&htab;According to section 5 of the Trade Unions Law, the unions can confer membership only on "workers", which term is defined in section 3, where "workers" and "non-workers" are distinguished from each other on the basis of the degree to which they are subject to the supervision of the employer. The CPSWU violated section 5 by conferring membership, and electing to the executive council, two persons who are not "workers", namely Ilias al-Jeldeh a jewel dealer, and Yedia Salem Obeid, who owns a shop for the sale of flour. The Agricultural Workers' Association (which is a member of the Workers' Association) also violated this section by electing Ahmed Atiah as a member of its executive council, notwithstanding the fact that he was not a member of this profession.

&htab;118.&htab;Lastly, the Government recalls that section 14 of the Law states that a trade union which does not satisfy its requirements can be dissolved; in view of principles contained in Conventions Nos. 87 and 98 the Government has not taken this step but stresses that it has no objection to the trade unions in Gaza holding elections which conform to the requirements of the law, and that it will recognise only the results of such elections as are conducted in accordance with the law.

&htab;119.&htab;The Committee notes that this case basically involves two distinct sets of allegations; first, non-recognition by the authorities of the new executive committees of the two complainant unions which were elected in February and April 1987 and the consequent ban on their involvement in any union activities; and secondly physical harassment of trade unionists and union leaders culminating in the June 1987 arrests. These various incidents allegedly form part of the oppression of Gaza trade unions which are trying to resume union activities for the benefit of their members after being inactive since 1967.

&htab;120.&htab;The Government's version of the events differs considerably from that of the complainant unions. First, the Committee notes the Government's claim that not only have the unions involved - and others in Gaza - been in violation of the applicable law as regards their membership and functioning, but also that the particular elections in question were void for failure to comply with the legislative provisions on the subject. Secondly, the Government explains that the police investigations and questioning of three persons (Tawfik al-Mabhouh, Hussein al-Jamal and Hussein Abu-Nar) have been conducted in the context of suspected unlawful activities and led to the opening of a Military Prosecution file, but that no charges have yet been laid.

&htab;121.&htab;As regards the main legislative provision referred to in this case, the Committee observes that section 7 of the Trade Union Laws (No. 331 of 1954) reads as follows:

7.&htab;None of the following is allowed to become a member of the union's executive council: ...

(2)&htab;Those convicted and sentenced for a felony or a misdemeanor in a crime that involves stealing or hiding stolen goods or fraud or dishonesty or bribery or deceivingly declaring bankruptcy or forgery or using forged documents or giving a false testimony or suborning witnesses or drug-trafficking or drug-possession, or sentenced for moral turpitude or crimes involving corruption of ethics.

It thus appears from the English translation of the text available to the Committee that the "crimes" which disqualify a person from union office are related to the appropriateness of allowing guilty persons to hold positions of trust, such as trade union office.

&htab;122.&htab;The position of the ILO supervisory bodies faced with such legislative restrictions on eligibility for union office has been that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association [see General Survey on Freedom of Association and Collective Bargaining, 1983, para. 164].

&htab;123.&htab;In the present case, the wording of section 7 places acceptable restrictions on criminal record holders, but it appears to the Committee that the military authorities have in fact applied section 7(2) in practice to a much broader range of crimes which, according to the criteria outlined above, have little direct relation to the capacity of a convicted person to fulfil trade union functions to which he or she might be elected. For example, the Committee observes from the detailed list supplied by the Government that four of the seven members of the recently-elected executives had been convicted of belonging to or having contact with a hostile organisation and the remaining three of a security offence, incitement, attempted murder and planting explosives. Moreover the Committee notes that the Military Court judgements cited by the Government date back in some cases to the early 1970s and that, from the information available, it seems that where prison sentences accompanied the convictions, they have been completed. It also notes that the Government gives a lengthy description of the terrorist involvement of organisations in the Workers' Association in Gaza, the federation of unions in the region whose council includes members of the newly elected executives. In view of the facts before it, the Committee would recall the importance of the principle which guarantees the right of workers' organisations to elect their representatives in full freedom. It would point out to the Government that a practice of giving a broad interpretation to trade union election legislation so as to deprive certain persons of the right to hold elected posts solely on the grounds of their political belief or affiliation is not compatible with this right.

&htab;124.&htab;The Committee notes that suspected fresh violations of section 7(2) are quoted by the Government as the reason for the police investigation of and the opening of a Military Prosecution file against Tawfiq al-Mabhouh (elected to the executive of the Building Workers' and Carpenters' Union), Hussein al-Jamal and Hussein Abu-Nar (elected to the executive of the CPSWU). The Committee accordingly trusts that due consideration will be given by the investigating authorities to the above principles.

&htab;125.&htab;As regards the second flaw in the election formalities on which the Government bases its non-recognition of the new executives, namely the requirement that voting be secret and democratic, the Committee observes that section 8(a) of the Law reads as follows:

8.&htab;(a)&htab;the trade union's executive council is elected according to the way explained in the union's articles of incorporation, where it should be stated that all members have equal rights and should be given a fair chance to participate in elections, and that the secrecy of elections should be guaranteed by means of a reasonable and practical way.

&htab;126.&htab;In past cases concerning legislative requirements for secret ballots for trade union elections, the ILO supervisory bodies have been of the view that no violation of the principles of freedom of association is involved where the legislation contains certain rules intended to promote democratic principles within trade union organisations or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members in order to avoid any dispute as to the election results [see General Survey , para. 169]. In the present case, the Committee notes the complainants' assertions that the elections were carried out in accordance with both unions' by-laws, but regrets that it does not have before it more detailed information as to the form of "Tazkiyeh" oral voting. In any event, the Committee observes that the military authorities have not attempted to use this alleged flaw to cancel the two complainant unions' registration - as they are entitled under section 14 of Law No. 331. On the basis of the information submitted the Committee is unable to determine whether the February and April 1987 union elections took place in strict conformity with the relevant legislative provisions.

&htab;127.&htab;As regards the allegation that the military authorities have misinterpreted section 3 of the Law so as to limit the right to join unions, the Committee observes that this is linked to the Government's general counter claim that the complainant unions violated the membership provisions of Law No. 331. This alleged violation of Article 2 of Convention No. 87 appears, from the facts presented in this case, to affect the status of only three of the newly elected CPSWU executive members: Mr. Mustafa Burbar, Mr. Ilias al-Jeldeh and Mr. Jedia Salem Obeid. The Government claims that these persons are not "workers" and the complainants describe one, Mr. Burbar, as "self-employed". Once again, given that this alleged infringement of the current legislation did not give rise to the prescribed penalty - namely, cancellation of the union's registration - the Committee cannot but decide that there has been no violation of Convention No. 87 as regards this aspect of the case.

&htab;128.&htab;In view of its examination of Law No. 331 and the facts presented to it in this case, the Committee considers generally that the ban on involvement in any union activities applied to eight recently elected members of trade union executive committees should be reviewed in the light of the principles stated above.

&htab;129.&htab;The Committee notes with concern the allegations of continued physical harassment and threatening of six unionists, in particular the June 1987: the double interrogation of Hussein al-Jamal and his charging and release on bail; the two arrests followed by eight hours' and then day-long detention of Ayesh Obeid, Tawfiq al-Mabhouh - who was summoned for a third time in July - and Mustafa al-Burbar; the arrest and the day-long detention of Suhail Abu-Ala; the triple summoning and day-long detention and charging of Hussein Abu-Nar. The Committee notes that according to the Government, police investigations have been opened concerning three of these persons (Hussein al-Jamal, Tawfiq al-Mabhouh and Hussein Abu-Nar) but no charges have yet been issued against them. It also notes that the Government describes Mr. Ayesh Obeid's previous criminal record but is silent as to the alleged recent police interrogations of this person and of Suhail Abu-Ala and Mustafa al-Burbar. As in previous cases involving repeated summonsing by the authorities [see, for example, 226th Report, Case No. 1153 (Uruguay), para. 178], the Committee would draw the Government's attention to the principle that the apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights.

&htab;130.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee recalls the principle that a practice of giving a broad interpretation to legislation on trade union elections so as to deprive certain persons of the right to hold elected posts is not consistent with freedom of association.

(b) The Committee is of the opinion that the allegations and counter-claims concerning sections 8(a) and 3 of the Trade Unions Law No. 331 of 1954 in force in Gaza do not call for further examination.

(c) As regards the ban on involvement in any union activities applied to eight recently elected members of union executive committees, the Committee requests the Government to review the situation in the light of ILO principles on freedom of association.

(d) The Committee recalls the principle that the apprehension and systematic or arbitrary interrogation by the police of trade union leaders involves a danger of abuse.

&htab;131.&htab;The Canadian Labour Congress (CLC) submitted a complaint concerning infringements of trade union rights in Canada (British Columbia) in a communication dated 13 October 1987. On 15 February 1988, the Federal Government of Canada sent the reply from the Government of British Columbia in a communication dated 18 January 1988.

&htab;132.&htab;Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;133.&htab;In its communication of 13 October 1987, the Canadian Labour Congress (CLC) states that it is lodging a complaint concerning infringements of ILO Conventions on freedom of association on its own behalf and on behalf of its affiliates in the province of British Columbia, and more particularly on behalf of its affiliate, the Canadian Union of Public Employees. The infringements arise from the adoption by the British Columbia Legislature of Bill 19/1987 on the reform of industrial relations, amending the British Columbia Labour Code and renaming it the "Industrial Relations Act" (hereinafter referred to as Bill 19 or Industrial Relations Act).

&htab;134.&htab;The complainant explains that Bill 19 has been proclaimed by the Government of British Columbia, with the exception of sections 137.97, 137.98 and 137.99, which however can be proclaimed any time at the will and discretion of the Government.

&htab;135.&htab;According to the complainant, Bill 19 is incompatible with the fundamental principles on which the ILO is founded. What is more, the British Columbia Federation of Labour, which is affiliated to the CLC, considers that this Bill is tantamount to "a declaration of war on the working men and women of this province" and recommends that the Industrial Relations Council established by the legislation in question should be boycotted.

&htab;136.&htab;The complainant draws particular attention to the aspects of the new legislation which, in its opinion, are the most incompatible with ILO principles. It points out that in Part 8.1 of the Bill, one of the major changes to the previous Labour Code is section 60 of the Bill, which adds an entirely new section 137, entitled, "Part 8.1: Disputes Resolution". Part 8.1 creates a new body known as the Disputes Resolution Division, whose duties are set out in section 137.2.

&htab;137.&htab;According to the complainant, under new Part 8.1, free collective bargaining is to be respected and preserved only to the extent that it causes minimal disruption to interests of the public and the economy as perceived by the Government and its agents. It therefore sets out a number of compulsory procedures permitting third party, and particularly government, intervention in private sector collective bargaining. It also comprises a scheme which permits incursions into the private sector bargaining concerns of the parties, and the collective bargaining process, and which permits broad administrative and governmental control of the use of traditional economic weapons by parties to collective bargaining disputes.

&htab;138.&htab;The complainant continues that under the Act, the Commissioner, his agents, or, at a higher level, the Cabinet, are authorised to monitor and control all collective bargaining and to intervene in it virtually any time through a combination of elements drawn from the old Labour Code, the Essential Service Disputes Act, and the Compensation Stablisation Act, some of which were the object of a complaint submitted to the ILO in September 1983. The new Act combines principles and some language from each of these Acts, restructured with some new notions to implement government philosophy as regards controlling collective bargaining.

&htab;139.&htab;The complainant quotes in particular the subsections of section 137 of Part 8.1, which deal with the establishment of public interest inquiry boards and the appointments of mediators and fact-finders.

&htab;140.&htab;Furthermore, section 137.93 allows the Commissioner to appoint a public interest advocate who, according to the CLC, will almost certainly express views and take positions which are insensitive to the needs and aspirations of trade unions and their members.

&htab;141.&htab;Under section 137.97, government intervention to end a dispute can be launched for any reason not only by resolution of the Legislature, but also by the Lieutentant-Governor in Council, when he considers that the dispute poses "a threat to the economy of the province or to the health, safety or welfare of its residents". According to the complainant, the wording of this text is wide and the process for bringing disputes to the Legislature so unrestricted that the Legislature, and more alarmingly, the Cabinet effectively becomes an actor in the collective bargaining process.

&htab;142.&htab;As regards the public sector, the provisions of sections 137.95 and 137.96 and all references under Part 8.1 to public sector employees, indicate clearly that all compulsory settlements are made subject to the guiding principle of "ability to pay". However, according to the complainant, the definition of ability to pay allows so little leeway that an arbitration board will be forced to accept the Government's assessment of monies available. Thus the government-employer can effectively dictate its terms of settlement to public sector employees and the unions representing them.

&htab;143.&htab;The entire Part 8.1 is based on the premise that all services, either public or private, are essential to some degree. The complainant is of the opinion that under this concept, the right to strike of many workers will be largely illusory.

&htab;144.&htab;Sections 137.98 and 137.99 provide the Legislature and the Cabinet with the power to consider any matter "essential" and hence have a collective agreement imposed under the processes available to the Commissioner. In the complainant's opinion, this is entirely inconsistent with the basic premises of international principles on free collective bargaining.

&htab;145.&htab;Under sections 137.8 and 137.9, strikes or lock-outs may be prohibited even before they have started and the statute also imposes an unfair and severe system of punishment on employees not obeying back-to-work orders. Under sections 137.9(7) and 137.97(8), such an employee would be at the mercy of the employer regarding discipline. An arbitrator can hear the case, but has no power to alter the employer's penalty if cause exists. If a bargaining unit, for example, failed to bring down a picket line as instructed, the employer could carefully select and discharge any or all union supporters, without recourse by the union.

&htab;146.&htab;Amongst the other sections of Bill 19 which, according to the complainant, flagrantly infringe international labour Conventions, is section 6 which eliminates the right to include secondary boycott clauses in collective agreements and prohibits trade unionists from thus giving effective assistance to their fellow workers.

&htab;147.&htab;Furthermore, section 29 of Bill 19 (which amends section 53 of the Labour Code) severely restricts successor rights and permits employers to manipulate the structure of a transfer of business to reduce the likelihood of a "successor" declaration. As retention of the same employees is one indication of succession, the new provision is also a powerful incentive to employers not to employ the predecessor's employees.

&htab;148.&htab;The complainant adds that under section 81(3) of the Industrial Relations Act, any strike must start within three months of the strike vote or a new vote is necessary. The complainant considers that this section removes control over a union's strategy and tactics from the union and places it in the hands of the Government or the employers. (In some circumstances, an agreement could be imposed without a union ever having been able to take a strike vote.)

&htab;149.&htab;Section 43(b) of Bill 19 severely restricts the options of a union that wishes to exercise its right to strike. When this section is read with the new Part 8.1, it appears there may be circumstances where the right to strike is completely taken away from unions in both the private and public sector.

&htab;150.&htab;The complainant considers that section 47 of Bill 19 severely restricts the places or sites at which a union may lawfully picket and that, in certain circumstances, lawful picketing could be prohibited entirely.

&htab;151.&htab;In concluding, the complainant hopes that the ILO will deal fairly and speedily with this matter.

&htab;152.&htab;In its reply of 18 January 1988, sent through the Federal Government of Canada, the Government of British Columbia points out that the legislative amendments to labour legislation introduced in the spring of 1987 were made against a difficult economic and social background requiring major change in labour law.

&htab;153.&htab;It states that in 1986, the year preceding the Industrial Relations Reform Act, virtually all components of British Columbia society would have agreed that the system of labour relations was undergoing a particularly traumatic time. The number of strikes and lock-outs had risen dramatically and this was imposing an unacceptable economic and social hardship on communities throughout the province. In 1986, the total number of work-days lost due to labour disputes reached nearly 3 million and this unrest culminated in a six-month disruption in the province's forest industry. This dispute alone directly involved 28,000 workers and accounted for 2,100,000 days of lost production at an estimated cost of two billion Canadian dollars to the provincial economy. The Government therefore considered that the labour relations unrest was a serious concern to the province, that it was undoubtedly discouraging investment opportunities and was contributing to the high provincial level of unemployment, averaging 12.6 per cent during 1986. In addition, given British Columbia's long-term dependence on international markets, the Government felt it was essential not to jeopardise its reputation as a supplier of primary products after recovery from the serious recession of the early 1980s.

&htab;154.&htab;As a result of the emerging consensus among a broad spectrum of British Columbia's society that some major changes to the process of collective bargaining were not only desirable, but were essential to their long-term interests, the Government decided to initiate a comprehensive review of its existing legislative framework for labour-management relations which, in its basic elements, had not been changed significantly since the early 1970s. This intensive and consultative review was undertaken during the early months of 1987.

&htab;155.&htab;The Government continues by explaining that public hearings were held in nine major centres around the province, and the general public and interested parties were requested and encouraged to make their views known through written briefs as well as oral submissions. In all, more than 700 briefs were received by the Ministry of Labour and these played an important role in the consultative development of the ideas and specific elements that were ultimately incorporated into Bill 19. Of these briefs, 288 came from organisations and the balance from individual citizens.

&htab;156.&htab;The Government states that it should be noted that labour organisations played an active role in participating in this legislative review process. In fact, of the 288 briefs received from organisations, 76 were received from labour organisations. The Government considers that trade union viewpoints were given equal consideration with those of employer positions and with those representing a variety of other interest groups in the province. In the final analysis, however, the Government was required to make certain choices and decisions which it determined to be in the best long-term interests of the province taken as a whole.

&htab;157.&htab;With respect to the specific concerns raised in the complaint, the Government of British Columbia replied to each of the points raised by the complainant.

&htab;158.&htab;As regards Part 8.1 of Bill 19 which, according to the CLC, sets out a number of compulsory procedures permitting third party and particularly government intervention in private sector bargaining, the Government states that it has two comments to make: first, it considers that the ability of a trade union to strike or of an employer to lock-out its employees is not an unlimited right and that it has already played a role in the past in labour disputes, by instigating conciliation procedures before the declaration of a strike and by determining which essential services should be maintained in the case of a strike, to protect public health, safety or welfare; secondly, according to the Government, the compulsory procedures outlined in Part 8.1 of the Act existed in one form or another in previous legislation or practice apparently without causing major difficulty to parties involved in labour negotiations.

&htab;159.&htab;According to the Government, the Industrial Relations Council's powers are a continuation of those previously exercised by the Minister and Ministry of Labour. The Government states that it is its intention that the Commissioner's authority to assist actively in private sector bargaining will be exercised judiciously and that significant interventions will only occur when the public interest is in jeopardy. Consequently, it does not agree with the complainant's allegation that the Commissioner's duty would be to control all collective bargaining.

&htab;160.&htab;As regards certain provisions of section 137 of Part 8.1 dealing with the establishment of public interest boards and the appointment of mediators and fact-finders which, according to the complainant, would express views and take positions which are insensitive to the needs and aspirations of trade unions and their members, the Government states that, on the contrary, the role of these various bodies will be to assist the parties in concluding and settling their differences. In addition, these bodies might on occasion play the role of advocate or protector of the interests of parties not directly involved in the dispute but who nevertheless have a vital concern in the eventual outcome. These features of the Act are designed to delay a work stoppage where the public interest may be adversely affected. However, they are not intended to prevent the parties directly involved from freely negotiating the collective agreement which it might be in their mutual interests to conclude.

&htab;161.&htab;As regards section 137.97 which enables the Government to intervene to end a dispute not only by resolution of the Legislature but also by the Lieutenant-Governor in Council, which, according to the complainant, is so vaguely worded that it allows the Cabinet broad intervention in the collective bargaining process, the Government replies that this provision is not going to result in the degree of intrusion into the collective bargaining arena that the CLC suggests. According to the Government, the Legislature's or Cabinet's involvement will be limited, as it has been in the past, to only those disputes having major impact on the health, safety and welfare of citizens. The Government adds that, even if this section should be brought into force in the future, it would do no more than speed up, and therefore limit the negative impacts of, intervention into areas where government involvement would likely occur even without change. Finally, the direct intervention of the Legislature or the Cabinet under section 137.97 will be mainly to trigger a response by the Commissioner of the Industrial Relations Council. His response would normally be to provide some assistance to the parties to aid them in concluding a mutually acceptable collective agreement.

&htab;162.&htab;Concerning section 137.95 and 137.96 and all references under Part 8.1 to public sector employees indicating that all compulsory settlements are made subject to the guiding principle of ability to pay, the Government concedes that although it is understandable that there are some features of the Industrial Relations Act which might be considered undesirable by trade unions and employers because of the possibility that the Commissioner may require the dispute to be settled by compulsory arbitration, previous practice in British Columbia suggests that this is a remote and unlikely occurrence. According to the Government, the underlying focus of the Act is to have the parties mutually determine the terms and conditions of their collective agreement through collective bargaining. The Act contains a variety of features designed to assist the parties in this process rather than to compel them as the CLC suggests.

&htab;163.&htab;The Government agrees that section 137.96 does make ability to pay an important, and in some instances the paramount, consideration for an arbitrated settlement of a public sector collective agreement. The ability to pay criterion was, however, incorporated into this section because the Government found that a limited number of arbitrators were ignoring or paying insufficient attention to the financial implications of their awards. This was causing problems for some local authorities and was, in effect, substituting an outside arbitrator's view of the proper organisation of resources for that determined by elected local officials. According to the Government, this change does not interfere with the integrity or the neutral position of the arbitrator and his or her ability to arbitrate fairly the issues under dispute. Even before the introduction of this legislative provision, most arbitrators normally considered the financial implication of an awarded wage settlement on the employer in question. Arbitrators will therefore continue to ensure that the real and true financial situation of the employer is carefully examined and that the economic facts are not manipulated to distort the arbitrator's award.

&htab;164.&htab;As regards sections 137.98 and 137.99 which, according to the complainant, enable the Legislature and the Cabinet to deem any matter essential and have a collective agreement imposed under the processes available to the Commissioner, the Government states that these two sections refer to the possible role of a special mediator who may be appointed to provide mediation assistance to the parties involved in a dispute seen as having particularly significant impact on the health, safety and welfare of the general public. Should this mediation role not be successful, the special mediator would be empowered to establish the terms of the collective agreement which are in dispute. The Government points out that these two sections have not yet been proclaimed and therefore have not become law. In any case, it adds, even if it finds it necessary to proclaim these sections in the future, this would merely codify a process which has already long existed in British Columbia and which is both rarely used and is largely acceptable to the parties based on previous experience. By way of example, the Government mentions the Metro Transit Collective Bargaining Assistance Act of 1984 which, at the time, ended a long stoppage of the public transport system in Vancouver and Victoria. It explains that the Act in question enabled a special mediator to be appointed, who had the responsibility of concluding a collective agreement to meet the longer-term interests of the parties while, at the same time, ensuring the resumption of this necessary service to the public after several months of disruption. The Government adds that these parties have since concluded a renewal agreement without the need for any outside involvement or interference.

&htab;165.&htab;Concerning sections 137.8 and 137.9 which, according to the complainant, make it possible to prohibit strikes or lock-outs even before they have started, the Government retorts that these two sections deal with labour disputes in the essential services. It agrees that the definition of essential services might be considered to be too broad, in that it includes reference to "poses a threat to the economy of the province" or "to the provision of educational services". However, it maintains that the scope of essential services as defined is consistent with the context of collective bargaining and previous experience in the province. In fact, according to the Government, these sections are carried over from previous legislation, in particular section 73 of the former Labour Code and section 8 of the Essential Service Disputes Act. It explains that section 137.8 covers two aspects of labour disputes, i.e. the designation of services to be maintained during a dispute and the possibility of imposing a short-term "cooling-off" period of up to 40 days. The "cooling-off" provision was introduced into legislation in 1975 and in the majority of cases of past usage has been accepted by the parties concerned. In fact, the new Act reduces the allowable period from the 90 days (plus an optional 14-day extension), that had been permissible under the Essential Service Disputes Act, to 40 days.

&htab;166.&htab;As regards section 137.9, the Government accepts that this authorises back-to-work orders, but explains that it merely codifies a practice which has been developed over the years. In this respect the Government affirms that its intention is only to intervene in the most serious situations.

&htab;167.&htab;Concerning sections 137.9(7) and 137.97(8) which, according to the complainant, would place an employee at the mercy of the employer regarding discipline, the Government explains that the purpose of these two subsections is to make clear to all concerned in a labour dispute that a back-to-work requirement is an order of priority to those affected. Consequently, according to the Government, employees are not placed at the mercy of the employer. They continue to have access to grievance and arbitration procedures available under their collective agreement for dealing with matters arising from some form of discipline. Similarly, the unfair labour practice provisions of the Industrial Relations Act will continue to apply and provide a broader protection for any employee that might be affected by an unjustified employer decision involving the sections about which the CLC has expressed concern.

&htab;168.&htab;As regards section 6 of Bill 19 (section 4.1 of the Industrial Relations Act) which abolishes the right to include secondary boycott clauses in collective agreements and prohibits trade unionists from thus giving effective assistance to their fellow workers, the Government replies that ILO Conventions do not provide for a "right" to conduct and engage in secondary boycott activities. It points out that it has decided to bring this practice more in line with that contained in the legislation of other Canadian provinces. In its view, the change in question does not prohibit declarations of support or boycott movements but only prevents an employer from agreeing to be a party to them as part of signing a collective agreement. It explains that individual union members, for example, could decide that they wanted to exert economic pressure on an employer by refusing to shop at a particular store. This type of activity would not be prohibited by section 4.1 of the Industrial Relations Act.

&htab;169.&htab;Concerning section 29 of Bill 19 (amending section 53 of the previous Act), which would allegedly severely restrict successor rights and enable employers to manipulate the structure of a transfer of business to reduce the likelihood of a successor declaration, the Government points out that the changes introduced by section 29 of Bill 19, amending section 53 of the Act, do not eliminate or significantly erode the successor provisions available under the Act. Section 53(1) still makes it clear that upon the sale, transfer or other disposal of a business, or a substantial part of it, a successorship and continuation of the existing collective agreement will occur. No "declaration" is required or ever has been required for a trade union to acquire successor status. Under the Labour Code (now the Industrial Relations Act), the Labour Relations Board/Industrial Relations Council is provided with jurisdiction to decide questions arising from a successorship issue pursuant to sections 53(3) and 34. According to the Government, section 53 simply clarifies the existing legislation respecting some specific issues that were surfacing as potential problems for the interpretation of this section. The amendment is therefore designed to provide guidance for the Industrial Relations Council.

&htab;170.&htab;In the Government's view, the interpretation previously given to section 53 was too narrow and worked to the detriment of investment opportunities. The addition of subsections 1.1, 1.2 and 1.3, dealing with individual skills, business location and bankruptcy cases, respectively, attempts to define better the relationship of these factors to a successorship.

&htab;171.&htab;As regards section 43 of Bill 19 (amending section 81(3) of the Labour Code), which stipulates that any strike must start within three months of the strike vote failing which a new vote is necessary, and section 43(b) (amending section 81(3)(b) of the Code) which severely restricts the options of a union that wishes to exercise its right to strike, the Government considers that these aspects of the Act are almost exactly the same as those which existed under the previous Labour Code. They have only, to a great extent, been carried over from previous legislation (see section 81(3)(a) of the Labour Code). The Government also adds that parallel provisions exist for employers who bargain as part of a multi-employer bargaining association who may wish to lock-out their employees. According to the Government, the statutory limitation on an unused strike mandate and the advance notice requirements, which are part of sections 81 and 82, are both appropriate and acceptable limitations which do not unduly hinder or restrict freedoms to use a strike weapon.

&htab;172.&htab;Concerning section 47 of Bill 19 (section 85 of the Industrial Relations Act) which allegedly places severe restrictions on the places and sites at which a union may lawfully picket, the Government states that it does not intend restricting the right of striking or locked out workers to express their opinions through picketing. In its view, the purpose of the changes is to eliminate, as far as possible, the unnecessary impact and disruption of picketing activity on third parties that do not have a direct involvement in the primary dispute. The Government adds that the Canadian Charter of Rights and Freedoms provides fundamental protection to individuals on grounds such as the right of freedom of expression. It points out for instance that if trade unions or their membership feel that fundamental freedoms have been infringed in this area, legal avenues are available to rectify that situation. In the Government's view, however, any limited restrictions on picketing introduced through Bill 19 are warranted, given the beneficial impacts on neutral third parties.

&htab;173.&htab;In the present case, the complainant criticises Bill 19 on industrial relations, amending the Labour Code of British Columbia, most of which entered into effect in July 1987, with the exception of sections 137.9, 137.98 and 137.99 which can however be proclaimed at any time at the discretion of the said Government.

&htab;174.&htab;According to the complainant, the new Act establishes a number of compulsory procedures in private and public collective bargaining and places administrative restrictions on the means which should be available to workers to put forward their economic claims.

&htab;175.&htab;The Committee has noted the detailed allegations submitted by the complainants and the specific replies communicated by the Government on each of these allegations. It has also taken note of the legislation criticised by the complainant, the relevant extracts of which are annexed to the present report. The question is to determine whether the disputes settlement procedures concerning workers in the public and private sectors, which have been introduced by the new Act in British Columbia, are in accordance with the principles of freedom of association upheld by the Committee on Freedom of Association.

&htab;176.&htab;The Committee notes the Government's explanation that it initiated a comprehensive review of legislation on labour-management relations as a result of a broad consensus among society in the province in 1986 after a number of difficult labour disputes. The Government claims that the workers' organisations were consulted but acknowledges that it was required to make certain choices and decisions which it considered to be in the best long-term interests of the province taken as a whole.

&htab;177.&htab;With respect to the allegations concerning Part 8.1 of Bill No. 19 on the reform of industrial relations, amending the Labour Code, which sets out a number of compulsory procedures permitting third party, and particularly government intervention, in private sector bargaining, the Committee notes the Government's assurances that it is its intention that the Commissioner's authority to assist actively in private sector negotiations will be exercised judiciously and only when the public interest is in jeopardy.

&htab;178.&htab;In the Committee's opinion, however, as the Committee of Experts on the Application of Conventions and Recommendations has already indicated, certain rules and practices can facilitate negotiations and help to promote collective bargaining and various arrangements may facilitate the parties' access to certain information concerning, for example, the economic position of their bargaining unit, wages and working conditions in closely related units, or the general economic situation; however, all legislation establishing machinery and procedures for arbitration and conciliation designed to facilitate bargaining between both sides of industry must guarantee the autonomy of parties to collective bargaining (see General Survey on Freedom of Association and Collective Bargaining, 1983, paragraph 302).

&htab;179.&htab;Consequently, the Committee considers that instead of entrusting the public authorities with powers to assist actively, even to intervene, in order to put forward their point of view, it would be better to convince the parties to collective bargaining to have regard voluntarily in their negotiations to the major reasons put forward by the Government for their economic and social policies of general interest.

&htab;180.&htab;In the present case, the Committee notes that the Commissioner may, when he considers it necessary, establish a public interest inquiry board (section 137.92 of Bill 19) which tries to assist the parties in reaching agreement and puts forward recommendations that each of the parties might accept or reject within ten days (section 137.94(1) to (7)). Nevertheless, it would seem that if one of the bargaining parties neglects or refuses to participate in the preparation of a collective agreement in accordance with the public interest board's recommendation, the other party may prepare an agreement giving effect to the recommendation and submit it to the public interest board for certification, following which it is binding on both parties (section 137.94(10) and (11)). In other words, under the new legislation, one of the parties alone can have recourse to compulsory arbitration to put an end to a labour dispute.

&htab;181.&htab;In this respect, the Committee feels bound to draw the Government's attention to the fact that compulsory arbitration to end a collective labour dispute is acceptable if it is at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving civil servants acting on behalf of the public authorities or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

&htab;182.&htab;The Committee therefore requests the Government to amend its legislation to limit the public authorities' powers of intervention in settling a labour dispute to the above-mentioned conditions and circumstances.

&htab;183.&htab;As regards sections 137.95 and 137.96 concerning the "ability to pay" criterion of employers in the public sector and the obligation of arbitrators to abide by this criterion, the Committee notes that it has already been called upon to examine Case No. 1329 concerning Canada (British Columbia) on this matter. The Committee therefore feels bound to refer to the conclusions it reached on this issue in that Case (see 243rd Report, paras. 183 to 188), where it is stressed that the requirement of prior approval before a collective agreement can come into force is not in conformity with the principles of voluntary collective bargaining laid down in Convention No. 98. The Committee had already suggested to the Government to envisage a procedure whereby the attention of the parties could be drawn to the considerations of general interest which might require further examination of the terms of the agreement on their part. However, it pointed out that persuasion was always to be preferred to constraint.

&htab;184.&htab;As regards sections 137.87, 137.98 and 137.99 which authorise the public authorities (i.e. the Lieutenant-Governor in Council or the Legislature) to refer a collective dispute - which, in their view, constitutes a threat to the economy of the province, to the health, safety and welfare of its residents or to the provision of educational services in the province - to a special mediator appointed by the Commissioner, who is empowered to establish the terms of a collective agreement between the parties, the Committee notes that for the moment the provisions in question have not entered into effect. The Committee notes, however, that the Government considers that these provisions merely codify an existing process which is rarely used but largely acceptable to the parties - based on previous experience.

&htab;185.&htab;For its part, the Committee can only express its firm hope that the Government will not implement these provisions, which are tantamount to providing the public authorities with the power of submitting a dispute to the compulsory arbitration of a special mediator. The Committee therefore requests the Government to ensure that the public authorities' powers of intervention remain restricted to the extremely limited conditions described above, i.e., to cases when the authorities may end a strike in the civil service or essential services, in the strict sense of the term. The Committee also recalls that teachers should also be able to enjoy the right to negotiate freely their working conditions and have recourse to strike action as a legitimate means of defending their economic and social interests.

&htab;186.&htab;Concerning section 137.8 which deals with essential services and allows a cooling-off period to be imposed for up to 40 days before a strike is declared, the Committee considers that the laying down of such a clause to defer a strike, in so far as it is designed to provide the parties with a period of reflection, is not contrary to the principles of freedom of association. Indeed, the Committee has already pointed out in the past that legislation imposing recourse to compulsory conciliation and arbitration procedures in industrial disputes before calling a strike cannot be regarded as an infringement of freedom of association (see, for instance, paragraph 378 of the Digest of Decisions and Principles of the Committee on Freedom of Association, 1985). The Committee feels that this clause which defers action may enable both parties to come once again to the bargaining table, and, possibly, to reach an agreement without having recourse to a strike.

&htab;187.&htab;As regards section 137.9, also on essential services, which makes it possible to ask the public interest board to determine the minimum service it considers necessary or essential to prevent an immediate and serious threat to the economy of the province, to the health, safety or welfare of its residents or to the provision of educational services, the Committee recalls that it has always admitted that a certain minimum service may be requested in the event of strikes whose scope and duration could cause an acute national crisis, but that in this case, the trade union organisations should be able to participate, along with the employers and the public authorities, in defining the minimum service (see Case No. 1356 concerning Canada (Quebec), 248th Report, paragraph 144).

&htab;188.&htab;The Committee therefore invites the Government to ensure that the occupational organisations in question are consulted when the necessary minimum service is being defined.

&htab;189.&htab;As regard sections 137.9(7) and 137.97(8) on return to work and the employer's right to discipline employees not obeying back-to-work orders, the Committee feels bound to recall that although Article 8 of Convention No. 87 calls upon workers and employers to respect the law of the land, this law should not impair upon the guarantees provided for in the Convention. In the Committee's opinion, whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful if applied to a specific category of staff in the event of a strike, whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association.

&htab;190.&htab;The Committee therefore requests the Government to ensure that the back-to-work orders are limited to the specific cases mentioned above and to amend its legislation to provide that employers are not authorised to discipline workers as they themselves feel fit.

&htab;191.&htab;Concerning the obligation to hold a second strike vote if a strike has not taken place within three months of the first vote (section 43 of Bill No. 19 amending section 81.3 of the Labour Code), the Committee considers that the parties might change their minds during a three-month period. Consequently, this provision does not constitute an infringement of freedom of association, provided that it sets out to enable the parties concerned to put forward their point of view democratically in a new vote.

&htab;192.&htab;As regards the restrictions on the places or sites at which a trade union may lawfully picket (section 47 of Bill No. 19 amending section 85 of the Labour Code) and the requirement that strike pickets cannot be set up near an enterprise where the workers are lawfully on strike, the Committee considers that this provision does not infringe the principles of freedom of association, in so far as these strikes have been legally declared in accordance with the principles of the ILO in this field.

&htab;193.&htab;As regards the elimination of the right to include secondary boycott clauses in collective agreements (section 6 of Bill No. 19), the Committee, while noting the Government's explanations on this point, considers that it is not in accordance with free and voluntary collective bargaining to include in legislation restrictions on types of clauses which could be included in collective agreements. Consequently, the Committee requests the Government to review the legislation on this point.

&htab;194.&htab;With regard to the provision which would restrict successor rights and permit employers to manipulate the way in which enterprises are transferred so that there will be no more obligation for successorship (section 29 of Bill No. 19 amending section 53 of the Labour Code which provides the Industrial Relations Council with jurisdiction to rule on the matter), the Committee notes that it has already been called upon to examine similar legislation in Case No. 1247 concerning Canada (Alberta). At the time, the Committee noted that the legislation in Alberta only codified and speeded up the previous normal practices and that it was not unreasonable (241st Report, para. 138). In the present case the Committee notes the Government's statement that the provision in question merely clarifies the legislation and is designed to provide guidance to the Industrial Relations Council. In the Committee's opinion, since the complainant merely makes a criticism of a general nature, without specifying in which way the principles of freedom of association are infringed, and that section 25 only specifies successorship rights and obligations by defining them more clearly - without however undermining successorship obligations - this provision does not seem to constitute a threat to freedom of association.

&htab;195.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee considers that several provisions contained in Bill No. 19 on industrial relations are not in conformity with the principles of freedom of association.

(b) The Committee therefore requests the Federal Canadian Government to invite the Government of British Columbia to amend its legislation.

(c) As regards recourse to compulsory arbitration to put an end to a strike, the Committee draws the Government's attention to the need to limit the right of public authorities to have recourse to arbitration to cases and circumstances in which strikes may be limited, or even prohibited, i.e., in the public service involving civil servants acting on behalf of the public authorities and in essential services, whether public or private, in so far as an interruption of these services might endanger the life, personal safety or health of the population.

(d) With respect to the obligation on arbitrators to take account of ability to pay criteria when making awards, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation to encourage and promote the development and use of voluntary collective bargaining procedures between employers or employers' organisations, on the one hand, and workers' organisations, on the other hand, to ensure that working conditions of workers protected by the principles contained in Convention No. 98 are settled by these means.

(e) As regards the determination of minimum services to be maintained in the essential services, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation to restrict such services to operations that are strictly necessary and to guarantee that workers' organisations are consulted along with employers and public authorities in determining the number of workers required to carry out such minimum services.

(f) Concerning the right of employers to discipline any worker refusing to obey a back-to-work order, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation so that employers may in no case discipline workers as they wish and to limit back-to-work orders to the specific cases mentioned above, i.e. in the event of a strike in the civil service and essential services, in the strict sense of the term.

(g) As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee requests the Federal Government to invite the Government of British Columbia not to include in its legislation restrictions on clauses which could be included in collective agreements.

(h) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the effects of this legislation on the application of Convention No. 87, ratified by Canada.

&htab;196.&htab;The complaint of the Independent Union of Employees of the Central Bank of Venezuela, alleging violations of freedom of association by the Government of Venezuela, was presented in a letter dated 1 June 1987. The Government replied to it in communications dated 26 October 1987 and 25 February 1988.

&htab;197.&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;198.&htab;The complainant explains that on 20 November 1985 the employees of the Central Bank of Venezuela held a general meeting so as to set up a trade union called "the Independent Union of Employees of the Central Bank of Venezuela"; they drafted rules and elected officers in accordance with current Venezuelan legislation. On 3 December 1985 they applied to the Ministry of Labour for the granting of legal personality to their union, adding that under section 185 of the Labour Code the Ministry had two months in which to effect the registration or address to the applicants such observations as might be deemed necessary.

&htab;199.&htab;However, the complainant states, in the present case six months passed without receipt of any reply - which, it says, is a breach of Articles 7 and 8 of Convention No. 87 according to which the acquisition of legal personality by workers' organisations shall not be made subject to requirements of such a nature as to inhibit the application of the Convention and that the law of the land shall not impair, nor be so applied as to impair, the guarantees provided for in the Convention.

&htab;200.&htab;The complainant denounces the overly obliging attitude of theMinistry of Labour towards the Bank's management which is preventing registration of the union and making use of delaying manoeuvres such as bringing the matter before the public prosecutor's office, whereas that office is not competent to decide such questions.

&htab;201.&htab;The complainant demands the immediate registration of the union in conformity with national legislation and the Venezuelan Constitution, which expressly protect the right to associate and respect for Conventions Nos. 87 and 98, ratified by Venezuela.

&htab;202.&htab;Furthermore, the complainant appends to its complaint a letter dated l9 May 1986, which it sent at that time to the employees of all the banks in the country to appeal for the solidarity of other bank employees in the defence of the right of the Central Bank's employees to organise and to bargain collectively. In this appeal, the complainant enumerates the occupational demands of the recently established union, namely: doubling of the grant made when an employeeretires on pension; maintenance of the requirement of only one year's seniority for the right to receive housing benefits; abolition of the discrimination existing between salaried employees and wage earners as regards medical benefits; reduction of the unjust workload imposed on the security watchmen, who have to perform police functions outside the immediate area of the Central Bank; and a more proper and equitable distribution of the duties of all the Bank's employees, based on their responsibilities, their seniority, their efforts and the honesty with which they carry out their work.

&htab;203.&htab;In its first reply dated 26 October 1987, the Government does not deny that the Minister of Labour has refrained from granting legal personality to the union, but explains that employees of the Central Bank are civil servants and it is not for the Ministry of Labour, but for the Central Personnel Office, to register a union of civil servants, in accordance with the regulations covering public servants' unions.

&htab;204.&htab;Going into more detail, the Government states that on 3 June 1986 the Ministry of Labour sent back its documents to the union which had proposed to establish itself, considering that in accordance with the Labour Code such a union could not be inscribed in the Register of Trade Unions, since it was composed of civil servants who are subject to the Administrative Careers Act.

&htab;205.&htab;The Government also explains that previously the Ministry of Labour had been competent to register unions of civil servants and that on 13 November 1973 it had indeed inscribed in the Register of Trade Unions the Union of Public Officials of the Central Bank of Venezuela; however, the registration of civil servants' unions was now within the competence of the Central Personnel Office.

&htab;206.&htab;The Government adds that in any case the complainant has the right to appeal to the courts and that it did indeed make an application to the Administrative Disputes Authority on 14 October 1986; this application was held to be receivable by the said Authority on 5 May 1987. According to the Government, the relevant proceedings are continuing.

&htab;207.&htab;Furthermore, the Government states that trade unions existingwithin the Central Bank of Venezuela, particularly the Union of Public Officials of the Central Bank (registered in 1973), act freely. It adds that the founding members of the Independent Union of Employees of the Central Bank are also members of the Executive Committee of the Union of Public Officials of the Central Bank, and that the union which it is proposed to set up is intended to recruit as members the same type of personnel as already belongs to the Union of Public Officials.

&htab;208.&htab;In a later reply dated 25 February 1988, the Government adds that in 1974, the Attorney-General had issued a resolution stating that employees of the Central Bank of Venezuela were civil servants as they were employed in the public service. It specifies that Decree No. 1378 of 15 January 1982, issued under the Administrative Careers Act, establishes the competence of the Central Personnel Office to register public servants' unions; furthermore, under section 219 of this Decree, it is provided that the Ministry of Labour must refer any documents concerning the registration of these unions to the Office in question. The Government also points out that the appeal to quash the ministerial resolution on this case (resolution of 3 June 1986, in which the Ministry of Labour stated it was not competent to deal with the matter and returned the documents to the trade union attempting to set itself up) is pending.

&htab;209.&htab;In the opinion of the Committee, the question whether one or another authority is entitled to grant legal personality to a trade union should not infringe the right of workers without distinction whatsoever, including civil servants, to form organisations of their own choosing without previous authorisation, as provided in Article 2 of Convention No. 87. Nor should the existence of a trade union of public servants in the Central Bank prevent the employees of that establishment from setting up another union for the defence of their interests if they so desire.

&htab;210.&htab;A quite different problem arises when considering which would be the most representative workers' organisation thus entitled to negotiate with the management over the conditions of work of the salaried and wage-earning employees of the Central Bank of Venezuela. In this connection, the Committee recalls that the decision as to which union is the most representative must always be made according to objective, precise and predetermined criteria, so as to preclude any possibility of partiality or abuse.

&htab;211.&htab;Moreover, the existence of a recognised trade union in the Central Bank of Venezuela should not have the result of depriving another union - perhaps not recognised as being the most representative- of the essential means of defending the occupational interests of its members and of the right to organise its administration and activities and to formulate its programme, as laid down in Convention No. 87.

&htab;212.&htab;In the present case, the Committee regrets the long time taken by the authorities in examining the matter, since the request for legal personality was made by the complainant, the Independent Union of Employees of the Central Bank of Venezuela, to the authorities in December 1985, more than two years ago. The Committee requests the Government to take the necessary measures to accelerate the consideration of the question of the granting of legal personality to the union in question.

&htab;213.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take the necessary measures to speed up the consideration of the question of the granting of legal personality to the Independent Union of Employees of the Central Bank of Venezuela. (b) The Committee requests the Government to keep it informed of the action taken to give effect to its recommendations.

&htab;214.&htab;The American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) presented a complaint of violations of trade union rights against the Government of the United States of America in a communication dated 19 February 1988. It submitted additional information in support of its complaint in a letter dated 9 March 1988. The Government supplied its observations in a communication of 27 April 1988.

&htab;215.&htab;The United States has not ratified the Freedom of Associationand Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;216.&htab;In its communication of 19 February 1988, the AFL-CIO refers to the conduct of the German-based multinational enterprise, BASF, in the United States. The current conflict involves BASF's action at its location in Geismar, Louisiana where workers have for many years been represented by Local 4-620 of the AFL-CIO affiliated Oil, Chemical and Atomic Workers' International Union (OCAW). However, according to the AFL-CIO, this is only one example of a pattern of anti-union conduct with victims at other locations.

&htab;217.&htab;The AFL-CIO states that in 1984, an Administrative Law Judge of the National Labor Relations Board (NLRB) credited the testimony of an employee at the company's site at Wyandotte, Michigan regarding the anti-union policy of BASF. It quotes from the NLRB document (the full text of which is enclosed):

On or about 25 May 1983, International Representative Larry Startin attended a third step grievance meeting at the Wyandotte site. While there, Startin asked Respondent's (BASF) Manager of Human Resources, Charles Caldwell, why Respondent was going after the Union as hard as they were. Caldwell answered that it was not anything personal but they had orders from Germany (Company world-wide headquarters) to get rid of all the unions in the United States. He went on to say they had already done it in two plants and Wyandotte was just next in line.

&htab;218.&htab;The complainant highlights some of the elements of the company's anti-union campaign: (a) attempts to destroy the union through changes in classifications or status of positions or through subcontracting of work to remove workers from the bargaining unit or replace them with non-bargaining unit employees who are without trade union representation; (b) discrimination against union leaders and activists; (c) the unilateral decision of the company at several locations not to honour provisions in collective bargaining agreements and clear past practice which provide for the payment of employees for reasonable time for union work, including activities related to the preparation and processing of grievances, a common practice in the United States which had previously been upheld by the NLRB and the courts. On this question of BASF's illegal and unilateral refusal to honour contract provisions and past practice on paid time off for union work, the AFL-CIO states that the company has persisted in challenging this practice in the NLRB and in the courts in spite of unfavourable decisions. For example, BASF, continued the appeals process up to the 6th Circuit Court of Appeals after having lost on this same issue in both the 2nd and 5th Circuit Courts.

&htab;219.&htab;According to the complainant, this case illustrates the inadequacy of United States labor legislation in safeguarding the principles of freedom of association in certain situations, such as when a company is determined to destroy a union which represents its employees or to frustrate an attempt by workers in an unorganised plant to join a union. The combination of all of the delays in the system and the weak sanctions imposed on lawbreakers can, as in this instance, result in violations of the fundamental rights of workers to form and preserve their trade unions and engage in collective bargaining.

&htab;220.&htab;The AFL-CIO states that much has been lost by BASF employees in the United States and by the unions which represent them. However, the struggle continues at BASF's location at Geismar, Louisiana where, in spite of having lived through a four-year lock-out, the workers continue to fight for their rights, their union and an acceptable collective agreement.

&htab;221.&htab;One of the complainant's numerous attachments is the latest charge filed with the NLRB on 2 February 1988 to try to obtain good faith bargaining which, it states, proves the reasonableness of the union and its sincere desire for a decent collective bargaining agreement. From this document it appears that negotiations were held on six occasions starting 13 August 1987, with the company's final offer - proposed in a parking lot on 22 September - being discussed for the first time on 13 October 1987, and implemented unilaterally by BASF on 27 October for a three-year period. In the document it is alleged that the company refused to show up for a scheduled meeting and refused to meet at mutually acceptable times and places, although it also appears that there had been several informal meetings both before and after the lockout linked to this matter which occurred in June 1984. The document shows that apart from the union's frustration at the company's refusal or delay in supplying information on certain structural changes in the plant and lack of courtesy, the principal deadlocks in the bargaining meetings involved the company's drug screening programme and the use of permanent subcontractors to exclude recalling locked out employees. Further unsuccessful negotiating sessions were held on 18 November and 8 December 1987 and 19 January 1988.

&htab;222.&htab;The document cites recent NLRB decisions deciding as unlawfulthe permanent replacement of locked out employees. It alleges that BASF's subcontracting was based on anti-union discrimination because those locked out employees (particularly the 110 maintenance workers) have little opportunity to join or maintain membership in the bargaining unit; it stresses that the company has no economic reason for subcontracting as statistics are available proving that work by members of the bargaining unit was less costly. The document also points out that the vast majority of the union's negotiating committee and leadership throughout the period of this labour dispute are from the maintenance department.

&htab;223.&htab;The complainant supplies copies of four other NLRB cases concerning against BASF locations (Rensselaer, N.Y. and the International Chemical Workers' Union (ICWU) Local 227; Jamesburg, N.J. and ICWU Local 846; Wyandotte, Michigan and OCAW Local 7-627; Geismar, Louisiana and OCAW Local 4-620) in which the employer was variously found guilty of certain unfair labour practices, including refusing to bargain, discrimination through the unlawful reduction in hours of union officials, unilaterally discontinuing the practice of paying union officials for time lost when on union business, discontinuing the union's use of the office, telephone and copying machine. The complainant also encloses copies of the 5th Circuit Court of Appeal judgement of 2 September 1986 ordering BASF's Geismar location to comply with the earlier NLRB order to cease certain unfair labour practices against its employees' exclusive bargaining representative, the OCAW Local 4-620. Another enforcement order has been sought from the 6th Circuit Court of Appeal to force the employer to abide by the decision affecting the Wyandotte location and OCAW Local 7-627; there has not yet been a ruling on this matter.

&htab;224.&htab;On 9 March 1988, the complainant supplied a copy of the sworn affidavit of the OCAW's international representative, Mr. Ernest Rouselle, to be used in the unfair labour practices case filed with the NLRB on 2 February 1988.

&htab;225.&htab;In a communication of 27 April 1988 the Government supplies details on each of the four NLRB cases concerning BASF Company locations in the United States referred to by the complainant. It points out that BASF complied with the NLRB's orders and the cases were all definitively closed: Rensslaer on 30 April 1987, Jamesburg on 4 April 1986, Wyandotte on 27 May 1987 after the NLRB withdrew its enforcement petition and Geismar on 16 December 1986.

&htab;226.&htab;As regards the AFL-CIO's allegations that BASF's unfair labour practices are part of an anti-union campaign ordered by company headquarters in Germany and inadequately protected against by the United States labor laws, the Government stresses that, in the Wyandotte case cited by the AFL-CIO, the Court did not find that BASF had an anti-union policy. In fact, after hearing the testimony cited above the judge went on to note that when the witness subsequently contacted another company official about the statement, the second official denied that the company had an anti-union policy; in discussing this evidence, the judge observed:

This is probably a matter of semantics. A company has a legal right to "think" whatever it wants about unions but it has no right to engage in unfair labor practices to undercut the union's support among its employees or engage in any unfair labor practices. I am deciding this case with that philosophy in mind. A company does not violate the Act if it wants to get rid of the union but only if it does something illegal to get rid of the union.

&htab;227.&htab;As for the allegation that BASF attempted to change classifications or to subcontract work with the goal of removing workers from the bargaining unit or replacing them with non-bargaining unit employees without union representation, the Government notes that in the only case adjudicated to conclusion involving the issue of classification (the Wyandotte case), the judge and the NLRB found in favour of BASF on that issue. It states that the AFL-CIO has provided no other evidence to support its allegation. To the extent that the pending case in Louisiana may raise the issue, it is the position of the United States not to comment upon active proceedings.

&htab;228.&htab;With respect to the allegation that BASF discriminated against union activitists, the Government notes that none of the cases cited by the AFL-CIO that has been adjudicated to conclusion appears to raise the issue. It claims that the AFL-CIO has provided no other evidence to support its allegation. To the extent that the pending case in Louisiana may raise the issue, it is the position of the United States not to comment upon active proceedings.

&htab;229.&htab;As regards the allegation that BASF refused to honour provisions in collective agreements and past practices that provide for the payment of employees for reasonable time for union business, the Government observes that in the three cases involving paid union time mentioned by the AFL-CIO, BASF was found to have violated the National Labor Relations Act (NLRA) by failing to bargain over the issue. The NLRB awarded relief to the complaining parties, and BASF complied with the Board's orders. Additionally, in the separate federal court action in which BASF sought to have the payments for union time declared unlawful, the district court and the Court of Appeal concluded that the collective bargaining agreement provisions did not violate the legislation. With respect to the related charge that BASF litigated the paid union time issue in bad faith by trying to have such clauses in the collective agreement declared unlawful, the Government notes that while each of the cases cited by the AFL-CIO involved the same general issue, there were differences of detail. Furthermore, a legal ruling of a United States Court of Appeal is binding upon the United States district courts within its jurisdiction but not upon other courts of appeal or district courts. Finally, states the Government, United States law provides a remedy for frivolous litigation: under Rule 11 of the Federal Rules of Civil Procedure, a court may impose appropriate sanctions.

&htab;230.&htab;Lastly, the Government explains that the NLRA creates a comprehensive scheme for administrative adjudication of unfair labour practice cases and judicial enforcement of NLRB orders. In the cases cited by the AFL-CIO, the parties were able to present evidence and legal arguments in support of their positions. On some issues, the unions prevailed; on others, BASF prevailed. Where BASF was found to have violated the NLRA, meaningful sanctions designed to correct the violations (including cease and desist orders and back pay awards) wereimposed and in each case, BASF complied with the Board's orders. In addition, according to the Government, considering the extent of the procedural safeguards in the adjudication process and the complexity of the issues presented, the time within which the NLRB and the courts resolved these cases was not unreasonable. It thus concludes that the AFL-CIO's complaint fails to provide any specific information to support its contention that United States labor laws are inadequate to safeguard the principles of freedom of association.

&htab;231.&htab;The Committee observes that there are basically two sets of allegations in this case: the first centres on various unfair labour practices by the German-based multinational, BASF, in four United States locations - most recently at Geismar, Louisiana - which the complainant considers show that employers's general anti-union policy; and secondly the inadequacy of United States labor legislation, viz. the National Labor Relations Act to protect against such violations of the workers' fundamental trade union rights.

&htab;232.&htab;The Committee notes the Government's statements denying delays in the legislative procedures or weaknesses in sanctions imposed on lawbreakers, as well as its explanation that, while each of the cases cited by the complainant found BASF in violation of the NLRA on some points, the judgements at the same time found in favour of the employer on others, and particularly regarding the testimony as to BASF's anti-union policy, the judge did not find that such a policy existed.

&htab;233.&htab;Before turning to the substance of the allegations, the Committee would point out with concern that this is the third recent complaint lodged - by different complainants - against the United States on the grounds of anti-union tactics and unfair labour practices by multinationals or large enterprises, in particular through abuse of the legislative provisions on recognition of collective bargaining agents and on procedures leading to conclusion of collective agreements. The Committee recalls that in Case No. 1401 [253rd Report, paras. 42 to 58, approved in November 1987] the charges against Norsk Hydro Aluminium Inc. had been dismissed by the Administrative Law Judge of the National Labor Relations Board and the Committee considered that the case did not call for further examination. Nevertheless, it stated its opinion that "by, for example, exploiting a series of possibly avoidable delays and misunderstandings, and by prolonging unduly the negotiations for a collective agreement, the company's attitude was not conducive to any kind of final agreement being reached following the negotiations". Likewise, in Case No. 1416 [254th Report, paras. 58 to 86, approved in March 1988] the Committee conceded that the case did not call for further examination in the light of the lack of evidence to support certain allegations, the NLRB's respect for due process and the fact that the complainant only represented a small minority of the workers employed by the new caterer. The Committee observed, however, that it remained open to the union involved to campaign and petition for coverage of the other food service workers on UN premises if it so wished.

&htab;234.&htab;In the present case, the Committee considers that the allegation relating to inadequacy of the pertinent legislation and its sanctions has not been proved. As pointed out in the Government's reply, the NLRA provides a series of procedural safeguards for the filing and hearing of unfair labour practice charges which, in the four cases cited by complainant, in fact led to verdicts against BASF on most of the vital issues. The complainant did not present any information to show that BASF has not complied with the NLRB's orders to cease and desist from certain violations of the Act. The Committee realises that fresh charges were filed on 2 February 1988 concerning the disruption of bargaining in late 1987 - which led to the unilateralimposition by the Company's Geismar location of a three-year collective agreement - but notes that the charges relate only to the recent bargaining and not to non-compliance with earlier sanctions. The very fact that the complainant's affiliates continue to use - and win with - the NLRB procedures indicates to the Committee that the system is not entirely without the confidence of the workers' organisations involved.

&htab;235.&htab;As regards the specific criticism of BASF's actions at Geismar, the Committee notes that the use of subcontracters as a means of weakening or eliminating the union is linked to the general allegation of discrimination against union leaders and activitists since BASF has singled out for subcontracting the one department from which the union's leaders and negotiating team come. In the Committee's opinion, given that this measure was apparently not linked to economic necessity, this might give rise to a violation of the principle that no one should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities [see Digest of Decisions and Principles , 1985, para. 538]. The Committee considers that subcontracting accompanied by the dismissal of union leaders can constitute an act of anti-union discrimination, just as dismissal, compulsory retirement, downgrading, transfers or blacklisting. The Committee requests the Government to ensure that the national machinery will hear this grievance speedily and impartially.

&htab;236.&htab;As for the allegations that BASF has not honoured collective agreement provisions and established past practice on paid time-off forunion business, the Committee notes that, despite many challenges by BASF before the courts, the United States judiciary has consistently (as the complainant and the Government point out) held that such clauses and practices should be respected, and has ordered BASF to do so. These verdicts are in line with the ILO standards concerning the granting of reasonable facilities to workers' representatives, such as time off for union business without loss of pay, access to all workplaces in the undertaking, access to management, notice board and distribution facilities and the use of other material facilities to enable them to exercise their functions promptly and efficiently [see the Workers' Representatives Recommendation 1971 (No. 143), Part IV].

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

(a) The Committee considers that subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his employment on grounds of union membership or activities. The Committee requests the Government to ensure that the national machinery will hear the union's grievance on this issue against BASF (at its Geismar location) speedily and impartially.

(b) In the Committee's opinion, the national courts' decisions obliging BASF to honour collective agreement provisions and past practice on paid time off for union business are in line with the ILO standards on the subject. (c) The Committee considers that the other aspects of this case do not call for further examination.

(d) The Committee requests the Government to keep it informed of developments in the unfair labour practice charges against BASF, Geismar, filed by the complainant's affiliate with the NLRB on 2 February 1988.

&htab;238.&htab;The Committee had already examined Case No. 1168 at its meetings in May 1983, May 1984, February-March 1986 and May 1987 [see 226th, 234th, 243rd and 251st Reports of the Committee] and Case No. 1273 at its meetings in November 1984, February-March 1986 and May 1987 [see 236th, 243rd and 251st Reports of the Committee].

&htab;239.&htab;At its meeting in November 1987, the Committee pointed out that the Government had stated in a communication that it would shortly be transmitting its observations on these cases (Nos. 1168 and 1273) [see 253rd Report, para. 8]. Since then new allegations have been received from the International Confederation of Free Trade Unions (ICFTU) dated 14 July 1987, the United Trade Union Federation of El Salvador (FUSS) dated 11 April 1988 and the World Federation of Trade Unions (WFTU) dated 27 April 1988. The Government sent certain observations on 2 September 1987 concerning the allegations made by ICFTU.

&htab;240.&htab;As the Committee had not received any information from the Government since then on a large number of pending allegations, at its meeting in February-March 1988 it drew the attention of the Government to the fact that, according to the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body, it would present at its next meeting a report on the substance of the cases in question even if the information and observations requested from the Government had not been received in time. Consequently, the Committee appealed to the Government to transmit its observations as a matter of urgency [see 254th Report, para. 13]. Up to the present date, no new information has been received from the Government.

&htab;241.&htab;El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;242.&htab;At its latest examination of the substance of Cases Nos. 1168 and 1273 [May 1987 (251st Report)] certain questions remained pending before the Committee. The Committee had in particular requested that (Case No. 1168):

- a judicial inquiry should be undertaken into the disappearance of the trade union leaders Elsy Márquez and José Sánchez Gallegos;

- further information should be provided on the arrest of some trade union members who were being held in custody and/or tried, indicating in particular the specific charges brought against them. The Government had reported that these persons were not in any of the detention centres in the country, but that it would ascertain whether they had been held at some stage in police security centres.

The Committee also requested that (Case No. 1273):

- a judicial inquiry be instituted into the alleged murder of the trade unionists Francisco Méndez and Marco Antonio Orantes (the Government had reported that the former had disappeared but that no state security body knew anything about his disappearance);

- it should be informed of the progress in the trial concerning the murder of the trade union leader José Arístides Mejía;

- it should be sent additional information on the arrest of Adalberto Martínez (23 June 1986), a member of the ANDA Workers' Union; Andrés Miranda (27 June 1986), a member of the FUSS, and Gregorio Aguillón Ventura (1 February 1986), who had been arrested by the rural police (policía de hacienda) and allegedly placed at the disposal of a military court, accused of political and related offences, as well as José Antonio Rodríguez (18 August 1986), a member of the Building Workers' Trade Union, arrested by armed men in civilian clothing while he was on his way to the Construction Company "Bruno Tonza" where he worked. It requested indications as to the specific reasons for these arrests and whether the persons concerned had already been released; - observations should be transmitted on the raid of the ANDES premises on 20 April 1986 by members of the armed forces, who confiscated documents and part of the files of the organisation, including the list of members; - observations should be sent on the dismissal of six trade union leaders in the telecommunications sector as a result of the strike called on 15 April 1986.

&htab;243.&htab;In a communication dated 14 July 1987 the ICFTU denounces the fact that on 8 July 1987 during a mass meeting organised by the Workers' Union of the Social Security Institute, which was on strike for socio-economic demands, the strikers were violently repressed by military forces stationed inside the Institute building. The communication adds that the military fired against the demonstrators, injuring a number of people more or less severely, and that the Social Security Institute subsequently continued to be occupied by military forces (Case No. 1273).

&htab;244.&htab;The United Trade Union Federation of El Salvador (FUSS), in a communication of 11 April 1988, alleges that on 10 April at 2.00 a.m. the house of Mrs. Marta Castaneda, a member of the Coffee Union (SICAFE) and leader of the Women's Committee of that union, was blown up. The building, at number 21, Colonia Lamatepec, Pasaje F, Zona D, in the town of Santa Ana, was completely destroyed, together with all that was in it. The communication from the FUSS states that five minutes after the attack against the trade unionist Castaneda and her son, who were fortunately not in the building, a unit of the Second Infantry Brigade of the same town, accompanied by the rural police, appeared on the scene. On 7 and 8 April, the Colonia was surrounded and searched by members of the Second Infantry Brigade who kept it sealed off until 2.00 p.m. on 8 April when the trade unionist Castaneda was allowed to leave. Finally, the communication denounces the persecution of the trade unionist Marta Alicia Sigüenza, a member of the general executive committee of SICAFE, who has been unable to come to her place of work, the San Ignacio Co-operative, and has been forced to hide for fear of being killed by the government forces (Case No. 1273).

&htab;245.&htab;In a communication of 27 April 1988, the WFTU alleges the persecution of members of the Union of Salvadorian Telecommunications Workers (ASTTEL), in particular its General Secretary, Mr. Raphael Sanchez, who was dismissed, and the current General Secretary, Mr. Humberto Centeno, who was arrested and beaten. It also alleges the detention and torture of Mr. Centeno's two sons as a means of pressuring the Union, and the death at the hands of death squads of the unionists Victor Manuel Hérnandez Vasquez, Medardo Ceferino Ayala and José Herbert Guardado.

&htab;246.&htab;On 2 September 1987 the Government sent its observations concerning the incidents that had occurred at the Salvadorian Social Security Institute and been denounced by ICFTU, stating that on the morning of 8 July 1987 a group of trade union members were demonstrating in front of the administrative offices of the Institute. Acting on higher orders, members of the national police were guarding the building and 85 per cent of the staff who were working at the time. The Government's communication states that the demonstrators entered by force, breaking through the safety cordon and, in spite of the repeated appeals of the officials to remain calm and reasonable, threw themselves on the police, attacking them with clubs in which nails were embedded and shoving them, injuring several of them as a result. After these violent actions on the part of the demonstrators, shots were heard and the security forces spread out to seek cover and ascertain where the shots came from. Two members of the police, as well as two national television journalists, were wounded by bullets. The communication adds that the Government condemns this type of action, whose planning had been denounced on various occasions as forming part of the politico-military strategy of the FMLN-FDR to bring about a confrontation between these unions and the authorities in order to destabilise the democratic process and tarnish the image of the Government in national and international public opinion.

&htab;247.&htab;Before examining the substance of the cases, the Committee considers it necessary to recall the views that it expressed in its First Report [para. 31] and which it has had occasion to repeat in various circumstances: the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. As the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, detailed replies to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.

&htab;248.&htab;The Committee deeply regrets that the Government has not sent all the information requested by the Committee on these cases and that, in view of the time that has elapsed, it has had to consider them without having access to all the information necessary for a thorough examination.

&htab;249.&htab;The Committee notes that the pending allegations concern the disappearance of the trade union leaders Elsy Márquez and José Sánchez Gallegos; the detention and/or proceedings against certain trade union members, in particular Raúl Baires, Francisco Gómez Calles, José Vidal Cortez, Luis Adalberto Díaz, Héctor Fernández, Héctor Hernández, Jorge Hernández, Carlos Bonilla Ortiz, Silvestre Ortiz, Maximiliano Montoya Pineda, Raúl Alfaro Pleitez, Roberto Portillo, Antonio Quintanilla and wife, Santos Cerrano, Auricio Alejandro Valenzuela, René Pompillo Vásquez, Manuel de la Paz Villalta and José Alfredo Cruz Vivas (Case No. 1168).

&htab;250.&htab;The Committee also notes that there are allegations still pending concerning the alleged murder of the trade unionists Francisco Méndez and Marco Antonio Orantes; the progress of the trial relating to the murder of the trade union leader José Arístides Mejía; further details on the detention of Adalberto Martínez (23 June 1986) a member of the ANDA trade union, Andrés Miranda (27 June 1986) a member of the FUSS, Gregorio Aguillón Ventura (1 February 1986) who is believed to have been detained by the rural police and to have been placed at the disposal of a military court, accused of political and related crimes, and José Antonio Rodríguez (18 August 1986) a member of the Union of Workers of the Building Industry. Other allegations pending relate to the raid on the premises of ANDES by armed forces on 29 April 1986, when part of the files and documents of the organisation were seized together with the membership list, and to the dismissal of six trade union leaders in the telecommunications sector as a result of the strike called on 15 April 1986 (Case No. 1273).

&htab;251.&htab;The Committee wishes to express its deep concern at the gravity and persistence of the allegations presented which relate to the disappearance, murder, detention and intimidation of a large number of trade unionists in El Salvador. Similarly it deplores the lack of additional information on the alleged violations of the fundamental human rights and freedom of association of the persons concerned. While bearing in mind Article 8 of Convention No. 87 according to which workers and employers and their respective organisations, like other persons or organised collectivities, must respect the law of the land, on condition that the said law does not impair the guarantees provided for in the Convention, the Committee wishes to underline the principle it has expressed on numerous occasions that a free trade union movement cannot develop in a system which does not guarantee fundamental rights, and especially the right of workers who are members of a union to meet on union premises, the right to free expression of opinion whether verbally or in writing, and the right of workers who are union members to be protected, in case of detention, by the guarantees of due legal process, which should be initiated as soon as possible. Similarly, the Committee would recall that a climate of violence such as that surrounding the murder or disappearance of trade union leaders is a serious obstacle to the exercise of trade union rights; such acts require stringent measures to be taken by the authorities. As regards the search of trade union premises, the resolution on trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th Session (1970), states that the right to effective protection of trade union property is a fundamental civil liberty essential for the normal exercise of trade union rights.

&htab;252.&htab;With respect to the denunciation made by ICFTU concerning the incidents that occurred on 8 July 1987 during a mass meeting organised by the Workers' Union of the Social Security Institute, the Committee takes note of the Government's information to the effect that it condemns this type of action and that the action in question is, in its opinion, part of the politico-military plans of an organisation bent on destabilising the Government. The Committee notes that the complainant's allegations and the comments of the Government give a contradictory version of events. It would recall that, in the past, when unrest broke out leading to loss of life and/or serious injuries, it had pointed out that the instigation of independent judicial inquiries by the government concerned is a particularly effective method for elucidating all the facts, determining responsibilities, punishing the guilty parties and preventing the repetition of such acts.

&htab;253.&htab;Lastly, the Committee notes that the Government has not supplied its observations on the allegation made by the FUSS on 11 April 1988 concerning the bomb attack against the trade union leader Marta Castaneda and her son, or on the alleged persecution of the trade unionist Marta Alicia Sigüenza.

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

(a) The Committee must once again deeply regret that the Government has not sent all the information requested on the pending allegations.

(b) The Committee once again requests the Government to set up a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos, and expresses the hope that it will be possible to throw light on the fate of these trade union leaders in the near future (Case No. 1168).

(c) With regard to the detention and/or proceedings against the trade unionists Raúl Baires, Francisco Gómez Calles, José Vidal Cortez, Luis Adalberto Díaz, Héctor Fernández, Héctor Hernández, Jorge Hernández, Carlos Bonilla Ortiz, Silvestre Ortiz, Maximiliano Montoya Pineda, Raúl Alfaro Pleitez, Roberto Portillo, Antonio Quintanilla, Santos Serrano, Auricio Alejandro Valenzuela, René Pompillo Vazquez, Manuel de la Paz Villalta and José Alfredo Cruz Vivas (Case No. 1168), the Committee requests the Government to provide additional information on their arrest, explaining the specific charges against them, the status of the proceedings and whether they are being held in custody at present or not (Case No. 1168). (d) The Committee requests the Government to supply additional information on the alleged murder of the trade unionists Francisco Méndez and Marco Antonio Orantes, and to carry out a judicial inquiry into this matter. The Committee also requests information on the progress of the trial concerning the murder of the trade union leader José Arístides Mejía (Case No. 1273).

(e) The Committee requests the Government to provide additional information on the arrests of Adalberto Martínez (23 June 1986), Andrés Miranda (27 June 1986), Gregorio Aguillón Ventura (1 February 1986), and José Antonio Rodríguez (18 August 1986); as well as on the raid on the premises of ANDES and confiscation of its documents by armed forces on 29 April 1986, and the dismissal of six union leaders in the telecommunications sector as the result of a strike called on 15 April 1986. (f) With regard to the incidents that occurred on 8 July 1987 between military and police forces and workers of the Social Security Institute, the Committee deeply deplores violent acts of this kind and urges the Government to instigate an independent judicial inquiry with a view to determining responsibilities, punishing the guilty parties and preventing the repetition of such acts, and also to keep the Committee informed of any steps taken to open a judicial investigation.

(g) Lastly, the Committee requests the Government to send its observations on the allegations made by the complainants on 11 and 27 April 1988.

&htab;255.&htab;The Committee has examined this case on various occasions, most recently at its February 1988 meeting, when it presented an interim report to the Governing Body. [See the 254th Report, paragraphs 288-350, approved by the Governing Body at its 239th Session (February-March 1988).]

&htab;256.&htab;Subsequently, the ILO received the following communications from the complainants: COPESA (Consorcio Periodístico de Chile, SA) Workers' Trade Union No. 1, of 22 January 1988; National Confederationof Federations and Trade Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH), of 5 April and 4 May 1988; International Confederation of Free Trade Unions (ICFTU), of 13 and 26 April 1988; Workers' Democratic Confederation, of 13 April 1988 and the National Confederation of Federations and Trade Unions of Chilean Textile and Allied Workers (CONTEXTIL), of 26 April 1988. The Government transmitted its observations in communications of 8 March, 7 April and 2 May 1988.

&htab;257.&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;258.&htab;At its 239th Session in February-March 1988, the Governing Body approved the Committee's recommendations relating to the numerous complaints of detention of trade unionists (specifically Manuel Bustos, Arturo Martínez and Moisés Labraña) and requested the Government to keep it informed of developments as regards their legal position; to the refusal to allow several trade unionists (Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro) to enter the country, and requested the Government to keep it informed of the situation of Luis Meneses Aranda, particularly as regards the restoration of his Chilean nationality; and to 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.

&htab;259.&htab;In its communication of 22 January 1988 the COPESA (ConsorcioPeriodístico de Chile, SA) Workers' Trade Union No. 1 reports that on 26 May 1987 the Consorcio Periodístico de Chile, SA entered into a collective labour agreement with the COPESA Workers' Trade Union No. 1. The agreement was for a period of two years (from 1 May 1987 until 30 April 1989), and provided that the workers' remuneration in force until 31 March 1988 would be adjusted from 1 April 1988 by a percentage equal to 95 per cent of the change in the consumer price index (a rise in the cost of living) for October, November and December 1987 and January, February and March 1988.

&htab;260.&htab;The undertaking reached an agreement on the rescheduling of debts and loans at preferential rates of interest with the creditor banks, headed by the Banco del Estado de Chile (a State bank) which signed an agreement with the undertaking for the rescheduling and payment of its debts, as is shown by the officially registered documentexecuted on 5 August 1987. In spite of this agreement COPESA demanded that the members of the trade union forgo the wage increase payable as from 1 April 1988, on penalty of dismissal. The complainant states that the undertaking's arbitrary demand that the workers withdraw their claim to the remuneration to which they are entitled on the grounds that it is not subject to compensation for inflation (which in 1987 was at the rate of 21.5 per cent) infringes statutory provisions contained in the Labour Code and in international agreements. The workers refused to accept this demand of the undertaking, which on 20 January proceeded to dismiss 15 per cent of the members of each of the three trade unions existing in COPESA. The Workers' Trade Union No. 1 reacted to this softening up process by insisting on compliance with the collective agreement, which led to the dismissal of 25 more of its members on 9 February 1988 and the announcement that a further 50 would be dismissed. The dismissals that took place after 20 January affected only workers in Trade Union No. 1, since, in view of the attitude adopted by the undertaking, Trade Unions Nos. 2 and 3 agreed to renounce the wage adjustment that was payable as from 1 April 1988. The communication goes on to say that the members of Trade Union No. 1 are production workers whose salaries are the lowest in the undertaking and that the effect of the wage increase on the total payroll entails only a very slight outlay for the undertaking, but that the undertaking is determined not to adjust the wages of the members of Trade Union No. 1 to compensate them for the rise in the cost of living.

&htab;261.&htab;The communication concludes by stating that as a result of the dismissals, the production staff have to work overtime without the proper rest periods and that their annual leave has been suspended; this shows how arbitrary the dismissals are. It is paradoxical that, while dismissing staff so as to put pressure on the workers and to avoid complying with the agreed wage adjustments, the undertaking has taken on fresh staff at a cost very similiar to the wages of the dismissed staff - most of the new engagements being of administrative staff with closer ties with the management of the undertaking.

&htab;262.&htab;In a communication dated 5 April 1988 the National Confederation of Federations and Trade Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH) denounces the overt pressure brought to bear by the employers through the management of each establishment to discourage unionisation in this sector. According to the complainant, as soon as workers show any sign of planning to organise themselves selective dismissals are made; the most active workers are summoned to the enterprise's administrative offices, and if the situation continues mass dismissals are ordered. This practice is especially common in small establishments employing up to 20 workers, where the employer habitually uses informers to prevent the workers from organising themselves and making subsequent demands for higher wages. The complainant adds that when workers go ahead with their decision to organise themselves, the employers dismiss all the persons concerned, or all the workers who in their opinion are the ringleaders. Collective agreements are used as a delaying tactic when workers plan to organise, but at the end of it all the workers very rarely still have their jobs. The complainant cites as examples the Savory, Bali Hai and Vegetariano establishments, adding that the workers who are not dismissed eventually give up in the face of the persecution to which they are subjected - jobs switched, longer hours, pay docked, etc. The complainant further alleges that undertakings in which there are established trade unions take advantage of the law to carry out mass dismissals, as occurred at the Hotel Carrera (where in 1985 100 workers were dismissed) the Hotel Sheraton (70 workers) the Copasin food store (100 workers), the Dos en Uno food store (200 workers) in 1986 at the end of the collective bargaining process. The current legislation is also used to dissolve trade unions. In 1985 alone, for example, trade unions were dissolved in the Violeta Peebles foodstuffs industry, the Hotel Claridge in Santiago, the Waldorf restaurant, the Hotel Isabel Riquelme-Chillan, the Conin company, the Prosit soda fountain and the Autogrill restaurant. The communication cites the typical example of the Rincón Alemán in the town of Los Angeles where the trade union was dissolved while the workers were engaged in collective bargaining and were protected by trade union immunity.

&htab;263.&htab;The CTGACH states that notwithstanding the many obstacles in this sector the workers organise and maintain trade unions in many undertakings, with the result that the employers' strategy has now switched to that of summoning non-unionised workers to the personnel manager's office where they are warned that they are better off as they are and are offered individual contracts instead of the benefits of the collective agreement; the employers then tackle the unionised workers who are made to sign the said individual contracts under threat of dismissal.

&htab;264.&htab;The complainant further adds that another method of breaking up trade unions in this sector is to contract work out: the employer contracts the services of outside undertakings (many of which are set up by their own executive) to take over the work of various sections and then dismiss the workers who were employed in them. There are several examples of this, such as the Marriot Chile undertaking where only 30 per cent of the staff are said to belong to the undertaking while the remaining 70 per cent work for various subcontractors, and the Hotel Carrera which has started turning over its various departments to subcontractors who currently employ nearly 50 per cent of the staff. This practice, the complainant alleges, makes all workers fear for their jobs and puts a stop to any form of organisation.

&htab;265.&htab;The CTGACH communication affirms that the employers in this sector have begun to persecute and dismiss trade union leaders systematically, sometimes on unfounded "grounds of dismissal". It cites the following examples: - Three years ago the leader of the Culinary Arts Trade Union, Luis Humberto Benítez (now the CTGACH youth officer) was unjustifiably dismissed by his employer, the Club de la Unión in Santiago. Although he took all the appropriate legal measures and won his case on every occasion, the undertaking refuses to reinstate him in his employment.

- Over the last two years the trade union leader in the Copasín undertaking, Angel Catalán (the Secretary-General of the CTGACH), has been contesting his dismissal in court, but there is so far no possibility of his being reinstated.

- Four years ago Arsenio Angulo, President of the trade union in the Autogrill restaurant, was dismissed; to date his case has not been settled.

- Juan Montalbán, chairman of the Sindicato Interempresas de Santiago (Santiago Inter-Enterprise Trade Union) was dismissed two months ago and his employer refuses to reinstate him; in this case it must be said that the labour inspectorate has not been as efficient as it should have been.

These are the most notorious cases. Moreover, in the provinces, where all kinds of pressure are brought to bear by employers, many trade union leaders are giving up their union posts and not taking their cases to court because it is impossible to obtain any effective or prompt action.

&htab;266.&htab;The complainant's communication also refers to the inter-enterprise trade unions, whose members often work in small establishments with a single owner who in many cases changes the firm'scompany registration for the sole purpose of avoiding the formation of trade union. These trade unions have repeatedly denounced the absence of collective agreements, failure to pay the minimum legal wage, and imposition of working days of up to 18 hours without any overtime pay; when a worker complains, there are immediate reprisals and the worker has to overcome a host of bureaucratic obstacles to get paid. When a complaint is filed with the labour inspectorate the employer denies any connection with the worker, who then has to take his case to the labour courts. In these circumstances, the worker usually leaves his job without taking any steps to enforce his rights, because he cannot afford the cost of all the legal formalities of hiring lawyers, etc.

&htab;267.&htab;In a further communication dated 4 May 1988, the CTGACH sends additional information on the refusal to grant May Day, which happened to fall on a Sunday, by the Hotel Carrera; on attacks against trade union leaders; on the case of Humberto Benítez who has not been reinstated although his court case was successful; on trade union leader Juan Montalbán Lopez (Chairman of the Provincial Restaurant Union) who was ordered by the Labour Inspectorate to present himself at his workplace for reinstatement and, not having accepted the working conditions imposed by his employer, who is chairman of the group of soda fountain and restaurant owners, was violently treated by her son and now is without work. The CTGACH raises other cases of dismissals after concluding collective agreements:

(a) Francisco de Aguirre Hotel-Serena: negotiations finished on 10 April after ten days' strike with an undertaking from the company not to engage in reprisals; however, to date five dismissals have occurred all based on "operational requirements of the company". (b) Evercrisp Food Products Company: for over three years the workers have been trying to organise, with the company dismissing the most committed workers whenever it discovered their intentions; on 26 April four workers were dismissed for "operational requirements of the company".

(c) Central de Restaurant Company: one of its executives is an ex-union leader and whenever even the slightest action is attempted, he calls the workers to the company's central offices where they are threatened and, if there is a hint that they are unionised, dismissed. In each of the company's casinos there are informants who use information on past events to bring charges against possible organisers.

(d) "2 in 1" Company: since the last negotiations, persecution of the union and its members has become common practice. A parallel organisation has been set up inside, all workers have been forced to sign individual contracts which are then registered with the Labour Inspectorate as collective ones in violation of the law, and today, when despite all this the workers have formed a union to bargain collectively in conformity with the law, the company has started selective dismissals and to pressure the workers into signing voluntary increases so as to obstruct the bargaining.

&htab;268.&htab;In a communication of 13 April 1988 the ICFTU denounces the dismissal by the Chilean authorities of 17 trade union leaders and more than 100 workers from the state railways. The trade unions in the state railways had petitioned the Government for various social and economic improvements and, having failed to obtain any reply, called a strike. The ICFTU adds that among the dismissed trade union leaders were Miguel Muñoz and José Criado of the Comando Nacional de Trabajadores (National Grouping of Workers). In a further communication dated 26 April 1988, the ICFTU states that faced with the agreement of the railway workers' unions to go on a warning strike on 7 April 1988 in support of calls against the privatisation of the undertaking, government and management authorities replied by dismissing 17 union leaders and 83 unionised workers. This company measure obliged the unions to commence an unlimited strike on 12 April 1988. The dismissed union leaders are:

-&htab;Jose Criado&htab;President (Fed. Nacional Trabaj. Ferroviarios) -&htab;Germán Díaz&htab;Secretary (Fed. Nacional Trabaj. Ferroviarios) -&htab;Miguel Muñoz Secretary General (Fed. Nacional Trabaj. Ferroviarios) -&htab;Ceferino Barra&htab;President (Sindicato Número 1) -&htab;Juan Díaz&htab;Secretary (Sindicato Número 1) -&htab;Rafael Rivera&htab;Treasurer (Sindicato Número 1) -&htab;José Ortega&htab;Director (Sindicato Número 1 de Santiago) -&htab;Guillermo Munizaga&htab;Director (Sindicato Número 1 de Santiago) -&htab;Hugo Salinas&htab;Treasurer (Sindicato Número 1 de Bernardo) -&htab;René Vilches&htab;Director (Sindicato Número 1 de Bernardo) -&htab;Oscar Cabello&htab;Director (Sindicato Número 1 de Bernardo) -&htab;Tito Ramírez&htab;Secretary (Sindicato Número 4 de Santiago) -&htab;Juan Contreras&htab;President (Sindicato Número 5 de Tracción) -&htab;José Morales&htab;Secretary (Sindicato Número 5 de Tracción) -&htab;Orlando Gahona&htab;Treasurer (Sindicato Número 5 de Tracción) -&htab;Iván Orellana&htab;Director (Sindicato Número 5 de Tracción) -&htab;Luis Pradenas&htab;Director (Sindicato Número 5 de Tracción)

&htab;269.&htab;In a communication of 13 April 1988 the Central Democrática de Trabajadores (Workers' Democratic Confederation) denounces the dismissals of trade union leaders and workers from the Chilean state railways, ordered by the Director of that undertaking, and adds that the dismissals are on the increase because they are supported by the Ministry of Transport and the Minister of Labour - which is a violation of trade union immunity and of the right to work.

&htab;270.&htab;In a communication of 26 April 1988, CONTEXTIL refers to problems facing workers of the Trade Union of the Curtiembre Interamericana Company and its own national executive council in the collective bargaining which has just come to an end with the Company. It states that for many years the workers of the Company have been seeking solutions to their wages, social and labour problems always finding, through collective bargaining, understanding of its problems by the Company. On 15 February 1988, 40 workers presented their claims in a collective agreement in accordance with the law, but the Company refused to receive it forcing the negotiating committee to turn to the labour bodies so that a labour inspector would officially present the draft agreement to the Company. From this moment on the employer engaged in a series of unfair labour practices against the workers involved in the draft, such as changes of places of work with salary drops, the dismissal of the Company's secretary, Mrs. Estela Miranda, being blamed as being behind the presentation of the draft and her arrest by unknown persons who threatened her for her participation in the lawful strike which, at that date, was 30 days' old. The Company was still refusing to find a solution to the labour dispute, hiding behind the labour legislation contrary to the interests of the workers.

&htab;271.&htab;In its communication of 8 March 1988 the Government comments that it is surprised at the way standard procedure is abused in order to accuse a member State, often irresponsibly and solely for the purpose of having the Government condemned. The Government's communication maintains that many alleged violations of freedom of association are not violations at all, and at most amount to non-compliance with, or infractions of the ordinary penal law, that the normal courts are competent to handle and judge. The Government expresses concern because, it claims, the complaint attempts to represent as the sole representatives of the Chilean trade union movement a small group of persons whose names constantly and repeatedly appear in complaints to international organisations. The Government states that on 31 December 1986 there were in Chile 11,215 trade union officials leading 386,987 workers belonging to 5,391 trade unions, 131 federations and 31 national confederations, and it is hard to see how the 11,215 leaders of the Chilean trade union movement can be said to be encountering difficulties when at most only a dozen are cited in the complaints made to international organisations. It might be argued that they are leaders of powerful trade unions that are very representative of the trade union movement; but the best known of them, Manuel Bustos, was elected by 391 votes in his trade union, which has 900 members. The Committee regularly receives complaints against police action that is taken to maintain order and to enforce respect for the freedom of movement of pedestrians and vehicles. The complainants consider that public demonstrations can bring about better working conditions and resolve economic and social policy issues. But the Government states that it cannot regard as legitimate public demonstrations involving the stoning of public transport vehicles, the setting up of barricades, the incitement of parents not to send their children to school, the injuring of members of the police force, the violent death of children and innocent persons, and substantial damage to public and private property. The Government cannot call such "demonstrations" legitimate, especially when their purpose is to destabilise the Government by making the country ungovernable.

&htab;272.&htab;The Government refers to the ban on various trade unionists from entering the country and states that Rolando Calderón A. and Hernán del Canto R. are in exile because they sought refuge in an embassy in 1973. Both held political posts as Ministers of State in the Allende Government and both, along with Mario Navarro, are barred from entering the country. The Government is constantly reviewing the list of persons in exile in with a view to their return. The exile of the persons named has nothing to do with any supposed trade union activities but only with activities engaging their political responsibility. As regards Luis Meneses Aranda, the communication states that on 23 December 1987 he was authorised to enter the country and was granted a temporary visa for 90 days so that once in the country he could arrange for his temporary or permanent residence and regularise his situation as regards the loss of his Chilean nationality. When Chilean nationality has been lost it may be reacquired by law, in accordance with article 11 of the Political Constitution.

&htab;273.&htab;Lastly, the Government refers to the raid on the headquartersof the Federation of Self-Employed and Part-Time Workers' Trade Unions and on the home of trade union leader Alejandro Olivares Pérez; it states that there is no record either with the police or in the courts of any such occurrence and that the persons allegedly affected have not lodged any complaint or appealed to the law courts.

&htab;274.&htab;In its communication of 7 April 1988 the Government provides information on the legal position of the trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, stating that the appeal instigated by the defendants' lawyers was heard by the Second Chamber of the Santiago Court of Appeal, where the pleas of the parties' lawyers were heard and a settlement was reached. On 21 March 1988 the Second Chamber of the Santiago Court of Appeal found for the appellants, quashed the verdict of the Court of First Instance appealed against, and acquitted Messrs. Bustos, Martínez and Labraña of the offences referred to in section 11 of the State Security Act. These persons are still at liberty and are enjoying all their trade union rights.

&htab;275.&htab;With regard to the comments made by the Government in its communication of 8 March 1988 on the alleged abuse of the supervisory procedures, and in particular the complaints of violations of freedom of association submitted to the Committee, in order to obtain condemnation of the Government, and on the representative character within the trade union movement of persons whose names frequently appear in such complaints, the Committee wishes to recall that, since it was formed, it has always stressed that the function of the International Labour Organisation as regards freedom of association and protection of the individual consists in promoting the effective application of the general principles of freedom of association, which is one of the principal guarantees of peace and social justice. Its function consists in guaranteeing and promoting freedom of associaton of workers and employers, not in bringing accusations against governments or condemning them. In carrying out its task, the Committee has always been particularly careful to apply the procedure developed over the years and to avoid exceeding its terms of reference. To avoid misunderstanding or misinterpretation, the Committee has thought it necessary to recall that its functions are limited to examining the complaints submitted to it; it is not called upon to formulate general conclusions on the trade union situation in particular countries on the basis of vague generalisations, but to assess the merit of the specific allegations made.

&htab;276.&htab;As for the ban on the re-entry into Chile of Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro, the Committee notes the Government's repeated statements that the list of persons in exile is constantly being revised so as to allow their return. The Committee also notes the Government's claim that their exile has nothing to do with any supposed trade union activities but only with activities engaging their political responsibility. In this respect the Committee wishes to recall that the forced exile of trade unionists is contrary to human rights and is a serious matter as it deprives them of the possibility of working in their own country; moreover, it is a violation of freedom of association, as trade union organisations are weakened by being deprived of their leaders. Furthermore, the Committee wishes to recall, in view of the close relationship between freedom of association and basic human rights, that the ban on entry into the country imposed on certain trade unionists is contrary to the provisions of international instruments on this subject. Thus article 12(4) of the International Convenant on Civil and Political Rights states that "no one shall be arbitrarily deprived of the right to enter his own country", and article 13(2) of the Universal Declaration of Human Rights that "everyone has the right to leave any country, including his own, and to return to his country."

&htab;277.&htab;As regards the situation of the trade unionist Luis Meneses Aranda, the Committee notes the Government's statement that he was granted a temporary 90-day visa on 23 December 1987 so as to be able to regularise his situation as regards reacquisition of his Chilean nationality. The Committee hopes that, in accordance with the legislation, Chilean nationality will be restored to the trade unionist Meneses Aranda shortly.

&htab;278.&htab;As regards the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and on the home of trade union leader Alejandro Olivares Pérez on 1 May 1986, the Committee notes the Government's observation that the persons allegedly affected have not submitted any complaint or filed any lawsuit and that the police have no record of any such occurrence.

&htab;279.&htab;As regards the legal situation of the trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, the Committee notes with interest the information supplied by the Government to the effect that the Second Chamber of the Santiago Court of Appeal upheld the appeal instigated by the defence counsel of Messrs. Bustos, Martínez and Labraña, quashed the verdict of the Court of First Instance condemning them, and acquitted these trade union leaders.

&htab;280.&htab;Lastly, the Committee observes that the Government has not sent its observations on certain allegations submitted in this case, namely: on the communication of the COPESA Workers' Trade Union No. 1 relating to the dismissal of members of that trade union who resisted pressure brought by the undertaking to make them give up a wage increase due as compensation for the rise in the cost of living which had been agreed on in a collective agreement made with the undertaking;on the complaint submitted by the CTGACH regarding the pressure brought to bear by the employers on workers in this industry to prevent them from forming an organisation; on the mass dismissals after the conclusion of collective agreements; on the dissolution of trade unions in this sector; on the pressure brought to bear by employers to force workers to sign individual contracts instead of enjoying the benefits of collective agreements and on the use of subcontracting as a means of avoiding unionisation; on the dismissal of trade union leaders and the situation in inter-enterprise trade unions; on the complaint submitted by the ICFTU and the Workers' Democratic Confederation relating to the dismissal of 17 trade union leaders (including Miguel Muñoz and José Criado of the National Grouping of Workers (CNT)) and more than 100 workers of the state railways for having petitioned the Government on socio-economic demands and for having called a strike when no reply was made to their petition; on CONTEXTIL's allegations of difficulties facing workers in the Union of the Curtiembre Interamericana Company in concluding a collective agreement with the Company and the latter's unfair labour practices against workers involved in the negotiating committee for the draft collective agreement.

&htab;281.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations;

(a) In connection with the ban on re-entering the country imposed on various trade union leaders, and specifically Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro, the Committee again urges the Government to rescind this ban and to keep it informed of developments in this situation.

(b) As regards the situation of the trade unionist Luis Meneses Aranda, the Committee expresses the firm hope that his Chilean nationality will be restored to him shortly in accordance with the law, and requests the Government to keep it informed of developments in this respect.

(c) As regards the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and on the home of trade union leader Alejandro Olivares Pérez, the Committee notes that, according to the Government, there is no record of any such occurrences nor complaint made in connection with these alleged events.

(d) As regards the legal situation of the trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, the Committee notes with interest the verdict of not guilty rendered by the Santiago Court of Appeal and expresses the hope that these trade union leaders will continue in the future the normal exercise of their trade union rights. (e) Finally, the Committee invites the Government to send its observations on the allegations to which no reply has been given.

&htab;282.&htab;The Committee has examined this case on three previous occasions - in May 1986, May 1987 and November 1987 (see 244th Report, paras. 337-356, 251st Report, paras. 373-398, and 253rd Report, paras. 302-327), when it submitted interim reports to the Governing Body. Since then the WCOTP has sent new allegations in a communication of 16 December 1987 and the Government has sent a partial reply, dated 29 January 1988, to the allegations submitted in this case.

&htab;283.&htab;Nepal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;284.&htab;In its previous examinations of this case, the Committee noted that the WCOTP alleged the following: (1) refusal, since early 1980, by the authorities to register the Nepal National Teachers' Association (NNTA); (2) refusal by the Minister of Education to enter into negotiations with the NNTA, whereas two new government-controlled teachers' unions had been set up; (3) repressive actions by the authorities, including the death of six district officers of the NNTA, detention for over two years of eight NNTA leaders, interference in the NNTA second national conference by the police and mass arrests of demonstrating teachers. The complainant organisation supplied a list of 61 named teachers allegedly dismissed because of their trade union activities and a list of 35 named teachers allegedly transferred for such activities.

&htab;285.&htab;In its communication of 25 May 1987, the Government stated that the complaint lodged by the Nepal National Teachers' Association was baseless and malicious and that its allegations were intended to malign the Government. The Government explained in general terms the importance of youth in the building of the nation and the importance of teachers, who were responsible for inculcating discipline and providing knowledge. The Government had therefore tried to raise the morale and spirit of teachers in Nepal, and had recently constituted an ad hoc committee to draft a constitution to form a teachers' association for the promotion of teaching and academic work, career development and protection of the rights and interests of the teachers, within the parameters of the constitution and the law of the land. The Government stated that the committee was chaired by a member of Parliament and included a wide range of representatives from both the primary- and secondary-level teachers of the country.

&htab;286.&htab;According to the Government the ad hoc committee had drafted the constitutions of the Nepal National Primary Teachers' Association and the Nepal National Secondary Teachers' Association, both of which had received the Government's assent. Central-level ad hoc committees had been constituted to set up the primary- and secondary-level teachers' associations as envisaged in the newly drafted constitutions,and the problems of the teachers had therefore been solved. Lastly, the Government stated that no teacher had been imprisoned on the grounds of his or her educational or academic pursuits.

&htab;287.&htab;In a subsequent communication dated 30 July 1987, the WCOTP alleged that the police hindered the activities of its Asian Regional Representative while he was in Kathmandu, and prevented the holding of its affiliate's third national conference, scheduled for 25-27 June 1987, at which 185 NNTA delegates were expected. In addition, the WCOTP cited a newspaper report of the Minister of Education's statement in Parliament to the effect that any organisation other than the newly formed Nepal Primary Teachers' Association and the Nepal Secondary Teachers' Association would be illegal under section 6 of the Act of the year 2018 BS of the Nepalese calendar, which prohibits the creation of associations parallel to already registered ones. This same report quoted the Minister as threatening "strong action" against those planning a conference on 25-27 June and indulging in activities banned by law.

&htab;288.&htab;Furthermore, the WCOTP Regional Representative sent to Kathmandu to attend the NNTA's third national conference was placed under police surveillance, including the tapping of his hotel telephone, from the moment of his arrival. On 24 June the police prevented him from visiting the NNTA's office. Officials of the UNDP advised him that the authorities would not be responsible for his safety if he remained in the country. Two NNTA representatives who went to the Regional Representative's hotel were arrested upon their arrival. On 27 June the co-ordinator and three other principal officers of the "Central Ad Hoc Committee" established by the Government to set up the two government-controlled associations attempted to visit the Regional Representative but were prevented by the police. They appealed by telephone from the hotel to a number of ministers and government officials but were unable to obtain authority to speak to the WCOTP representative.

&htab;289.&htab;The WCOTP stated that the ban on contact with international organisations was a flagrant violation of freedom of association.

&htab;290.&htab;The WCOTP supplied a list of 72 arrested teachers. Accordingto the WCOTP, the first arrests of teachers in connection with a national conference began as delegates from outlying areas were preparing to leave their homes a week before the conference. Teachers were seized, confined to cells where there was no room to lie down and refused food. On 25 June 1987, in the vicinity of the NNTA office, there were, it stated, arrests of teachers, students, parents and passers-by.

&htab;291.&htab;On the evening of 25 June, the WCOTP stated, an attempt by the police to enter the NNTA office was frustrated by a gathering of local people. During that day the premises on which the conference was to be held were surrounded by police and all access prohibited. The conference, however, did take place on 27 June at an undisclosed location and was, according to the WCOTP, peaceful and attended by members of Parliament, representatives of parents, students, professional associations and the press, and it elected a national executive committee.

&htab;292.&htab;In the light of the information at its disposal at its November 1987 meeting, the Committee submitted the following interim recommendations to the Governing Body for approval:

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

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

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

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

(e) The Committee urges the Government to examine the Director-General's offer to send a representative to Nepal in order to discuss the general situation and find solutions to the problems raised in this case, in the light of ILO principles on freedom of association.

&htab;293.&htab;In a further letter dated 16 December 1987 the WCOTP stated that Mr. Sushill Chandra Amatya, a founder member of the NNTA, was still in prison four months after his arrest. The WCOTP supplied a list of nine named teachers who were leaders of the NNTA and were arrested in November 1987. The WCOTP added that repression continued; that the salaries of teachers with NNTA connections were not paid; and that government officials were visiting every school, threatening and pressing teachers to join the two associations formed by the Government.

&htab;294.&htab;In its letter of 29 January 1988 the Government affirms that the constitutions of the two associations of primary and secondary teachers were duly approved by the Government on 12 February 1987 in accordance with the National Guidance Act of the year 2018 BS of the Nepalese calendar. The Government repeats its previous statement that these constitutions were adopted after discussions at a meeting of the teachers' representatives from all the 14 zones of Nepal.

&htab;295.&htab;The Government states that under the said constitutions, two separate ad hoc committees at the central level were formed, one for secondary teachers and one for primary school teachers. It recalls that as far back as 21 years ago, in the year 2023 BS of the Nepalese calendar, the professional school teachers had asked for permission to organise themselves into two separate organisations to protect and promote their interests. Pursuant to the decisions made by the central ad hoc committees of the said associations, ad hoc committees had been formed in all districts of Nepal.

&htab;296.&htab;The Government admits that persons who, it states, no longer belong to the teaching profession opposed these two associations. Those persons are Devi Prasad Ojha and Sita Ram Maskey, and a handful of their followers, and they had called for one teachers' association to be formed. These persons submitted the constitution of their association in the year 2036 BS of the Nepalese calendar, but the constitution was not approved by the Government because it made no provision for representation of primary-school teachers, and because those teachers were vehemently opposed to it and had made an application for a separate association of their own.

&htab;297.&htab;The Government adds that these persons, motivated by political objectives, were making endeavours to sow the seeds of discontent in the teaching profession. They were misleading some of the teachers and declaring themselves to be members of committees they had secretly constituted.

&htab;298.&htab;Nevertheless, the Government continues, the constitution independently prepared by the secondary and primary-school teachers from all the 14 zones of Nepal was warmly welcomed by the entire community of teachers. A large number of teachers who were once the supporters of the constitution of the teachers' association proposed in the year 2036 BS of the Nepalese calendar were now serving as members of the ad hoc committees formed pursuant to the approved constitution of the two associations.

&htab;299.&htab;The Government states further that these two associations have as one of their aims that of electing office bearers, and that within the short period of three months district-level committees have been constituted in nearly half the total number of districts through democratic means. Meetings of teachers have, it says, accorded a warm welcome to these associations. Elections of trade union leaders at both levels have taken place among the teachers. According to the Government, the so-called NNTA trade union leaders are only self-declared leaders. Nine of them, including a secretary general, had in a joint declaration denounced the so-called NNTA for publishing their names as leaders of the NNTA without their prior knowledge, and they had dissociated themselves from the "association". The Government adds that in the context of its announcement that the so-called NNTA was illegal, it did not authorise the holding of a conference by this illegal organisation.

&htab;300.&htab;The Committee notes that this case concerns the trade union representation of primary- and secondary-school teachers in Nepal and reprisals carried out against trade unionists, including the death, arrest and dismissal of trade union activists and leaders, as well as the occupation of premises and confiscation of trade union material and obstruction of a national trade union conference.

&htab;301.&htab;The Committee notes that the accounts of the facts at issue given by the complainant organisation and the Government are completely contradictory.

&htab;302.&htab;According to the complainant organisation, the Government flagrantly interfered in the trade union affairs of teachers, causing the death, arrest and dismissal of trade unionists, refusing to register a trade union organisation set up by Nepalese teachers themselves, occupying the premises of the organisation and hindering the holding of a national trade union conference and international contacts of Nepalese trade unionists with foreign trade union representatives.

&htab;303.&htab;According to the Government, on the other hand, the two legally registered associations represent primary- and secondary-schoolteachers, in accordance with the wish expressed by teachers at a meeting of teachers' representatives from all the 14 zones of Nepal. The Government admits, however, that persons who, it states, no longer belong to the teaching profession opposed the setting up of these two associations and that these persons submitted the constitution of their association; it explains that this constitution was not approved because it made no provision for representation of primary-school teachers, against the express wish of such teachers.

&htab;304.&htab;The Committee, while noting the Government's explanations on the matter, profoundly regrets the fact that the Government has not replied to several particularly serious allegations relating to the death, arrest and dismissal of trade unionists, as well as the occupation of premises and confiscation of trade union property.

&htab;305.&htab;The Committee recalls the principle expressed in its First Report (para. 31), that the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. As the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, detailed replies to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.

&htab;306.&htab;The Committee notes that the constitutions of the two primary and secondary school teachers' associations were drafted by two committees set up by the Government. In this respect, the Committee recalls that workers' and employers' organisations should have the right to draw up freely their constitutions and rules without interference from the public authorities.

&htab;307.&htab;In addition, the Committee can only repeat its previous requests, and urges the Government to supply specific and detailed information on all of the allegations in this case.

&htab;308.&htab;In particular, it requests the Government to set up a judicial inquiry into the alleged deaths of teacher trade unionists at the hands of the police in 1985 and to inform it of the charges brought against the eight named trade union leaders of the NNTA, to give explanations on the occupation of NNTA premises and the confiscation of trade union papers in May 1985, and to state whether the teachers arrested in June and November 1987 as well as trade union leader Sushill Chandra Amatya, a founding member of the NNTA, have been released.

&htab;309.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee regrets that, despite the time which has elapsed since the allegations were made, the Government has supplied only general observations on this case and that it has not yet replied to several specific and extremely serious allegations.

(b) The Committee recalls that workers' organisations should have the right to draw up freely their own constitutions and rules without interference from the public authorities.

(c) The Committee urges the Government to supply detailed information on any judicial inquiry that might have been carried out into the alleged deaths of teacher trade unionists at the hands of the police in 1985, to state the charges brought against the eight named trade union leaders of the NNTA, to give explanations of the violent occupation of premises and confiscation of NNTA property in May 1985, and to state whether the teachers arrested in June and November 1987, as well as trade union leader Sushill Chandra Amatya have been released.

&htab;310.&htab;The Committee examined this case at its November 1987 meeting, when it submitted an interim report to the Governing Body [see 253rd Report, paras. 357 to 380]. Since then the Government has sent certain information and observations on this case, in a communication dated 18 April 1988.

&htab;311.&htab;Czechoslovakia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;312.&htab;In its previous examination of the case, the Committee noted that the allegations of the ICFTU concerned the following: (1) the dissolution by the Government of Czechoslovakia of the Jazz Section of the Musicians' Union of Czechoslovakia (MUC); and (2) the prison sentences allegedly imposed on the Chairman of the Section, Mr. Karel Srp, and its Secretary, Mr. Vladimír Kuril, as well as other trade union activists and leaders, for carrying out trade union activities.

&htab;313.&htab;As regards the dissolution of the Jazz Section, the ICFTU had explained that this Section had been founded on 30 October 1971, that it was part of the MUC, and that it offered assistance to its membership, consisting of defending the interests of individual performers, and publishing pamphlets on jazz, contemporary music and other cultural subjects. The Jazz Section, whose membership soon grew to several thousand, acted as representative for jazz musicians, organised their performances, and negotiated honoraria and working conditions on their behalf. In 1978, the Jazz Section started to face harassment by the authorities because of the moral support it had extended to members of a musical group who had been tried for expressing views allegedly hostile to the Government. Between 1982 and 1984, the Government launched a series of attacks through the press against the Jazz Section and its activities. In 1983 the Government ordered the Jazz Section to disband, which it refused to do. However, following strong pressure from the Government, the MUC disbanded the Jazz Section on 15 June 1983, thus compelling leaders and members of the Jazz Section to create a new section as part of the Prague division of the MUC. However, the authorities ordered the Prague division to disband by administrative orders of 19 July and 22 October 1984. Faced with this situation, the Jazz Section, which would also have been dissolved as a result of this, replied that, according to its own by-laws, it could decide on its dissolution only by a two-thirds majority vote of its membership. On 21 January 1985, the Ministry of Internal Affairs disregarded this and issued its final decision on the dissolution of the Prague division. On 15 January 1986, the Supreme Court refused to review the legality of the administrative dissolution.

&htab;314.&htab;According to the ICFTU, the dissolution Decree of 22 October 1984 which had been issued under Act No. 126/68 entitled "Act on certain transitory measures to reinforce the public order", which was adopted in the wake of the events of 1968, and which permits the dissolution, at the Ministry of Internal Affairs' request, of organisations which threaten the stability of the State during a period of crisis, without prior examination by a court of law. This Decree provided that any organisation liable to administrative dissolution could lodge an appeal (but this right was subsequently removed by Decree No. 99 (para. 6) of 22 August 1969, for a period ending 31 December 1969). The ICFTU states that the dissolution Decree of October 1984 should have mentioned the possibility of lodging an appeal. The Jazz Section appealed to the Constitutional Court on the grounds that the legislation invoked for the organisation's dissolution, namely, Act No. 126/68, had been of a temporary nature and should therefore be deemed to have fallen into desuetude. Although the Constitutional Court had been set up in 1968, it was never formally installed and thus the appeal had not been heard. Another legal petition to quash the Decree, introduced by the complainants before the Prague Municipal Court, had also been rejected ab initio and on appeal, explained the ICFTU.

&htab;315.&htab;As concerns the arrests, the ICFTU had stated that, in addition to the arrests of the President and Secretary of the Jazz Section, other members of its Steering Committee had also been sentenced to imprisonment for engaging in "illegal lucrative activities". By a decision of 11 March 1987 of the Prague District Court No. 2, upheld on appeal on 12 May of the same year, the Chairman of the Jazz Section, Mr. Karel Srp, was sentenced to 16 months' detention, and Mr Vladimír Kuril, Secretary of the Section, to ten months; Mr. Josef Skalnik, Deputy-Chairman, to a ten month suspended sentence and three years' probation; Mr. Cestmír Hunat and Mr. Tomás Krivánek were placed on probation for two years. Two other defendants in the trial, Mr. Milos Drda and Mr. Vlastimil Drda, both excused from appearing in court on medical grounds, were to stand trial at a later date. According to the ICFTU, all of these trade unionists had been arrested on 2 September 1986 for "operating an unauthorised enterprise", "illegal lucrative activities" and "distribution of illegal publications". On 28 December 1986, a Prague court ordered the release of two members of the Jazz Section, Mr. Josef Skalnik and Mr. Milos Drda and, on 22 January 1987, another court ordered the release of Vlastimil Drda, Tomás Krivánek and Cestmír Hunat.

&htab;316.&htab;The complainant organisation had stated that the arrest of the seven above-mentioned persons had been the culmination of several years of administrative harassment of the Jazz Section, as well as anti-union discrimination in employment and judicial repression against its leaders and members.

&htab;317.&htab;The ICFTU had alleged the following harassment: Mr. Karel Srp, Chairman of the Jazz Section, had lost his post as technical editor for the state-owned Panton recording company on 28 February 1984 because of his trade union activities. In addition, the headquarters of the Jazz Section were allegedly raided by officials of the Ministry of Internal Affairs and the police, who took away files, membership lists, books and casette tapes.

&htab;318.&htab;In October 1985, Mr. Petr Cibulka, member of the Jazz Section and signatory of the Charter 77, was allegedly sentenced to seven months' imprisonment for having "insulted the nation"; according to the Jazz Section, he was in fact being prosecuted for his activities linked to the Section. On 15 January 1986, an appeal court upheld the sentence and imposed three subsequent years of "protective supervision".

&htab;319.&htab;After losing his job, Mr. Karel Srp was allegedly accused on 18 December 1985 of "social parasitism" by the Ministry of Internal Affairs and threatened with charges of "illegal lucrative activities" within the Jazz Section. These threats were allegedly linked to Mr. Srp's presence at the Cultural Forum of the Conference on Security and Co-operation in Europe, held in Budapest as part of the Helsinki agreements; on 8 January 1986, the authorities allegedly withdrew Mr. Srp's passport, in apparent retaliation for his trip to Budapest.

&htab;320.&htab;According to the ICFTU, the notice of dismissal given to Mr. Karel Srp on 27 November 1983 was explained by an administrative reorganisation of the Panton Music Fund which eliminated the post of technical editor which Mr. Srp had held for 11 years and for which he had been decorated as an exemplary worker. Mr. Srp challenged the legality of the notice in court; however, Prague District Court No. 1 rejected this challenge on 7 June 1984, and its decision was upheld on appeal on 7 September 1984. Mr. Srp remained unemployed for a certain time and subsequently found work at the JRD co-operative farm in Kamenica. According to the ICFTU, the courts' decisions were based on the above-mentioned administrative reorganisation, and on the fact that no position within the Panton enterprise was available for Mr. Srp. The complainant organisation states that copies of documents show that certain state authorities, in particular the Ministry of Culture, had exceeded their mandate by seeking to have Mr. Srp dismissed because of his activities in the Jazz Section. It appears that the authorities fabricated a situation by taking measures to ensure that Mr. Srp's dismissal would appear to be in accordance with the spirit of the law and international Conventions. On 13 March 1987,states the ICFTU, Mr. Srp requested authorisation to reopen the case, but the Municipal Court referred the case to another jurisdiction on 30 March. The ICFTU states that, at the time of the complaint, the post of technical editor which Mr. Srp had held previously had been reinstated.

&htab;321.&htab;The ICFTU also alleges the arrest and imprisonment of other members of the Jazz Section on 28 April 1986: Mr. Jaroslav Svestka was sentenced to two years' imprisonment followed by three years' protective custody for "harming the Republic's interests abroad". The sentence appears to be related to Mr. Svestka's attempt to seek international support for the Jazz Section and its members. His sentence was later reduced on appeal. Mr. Vlastimil Marek was arrested and charged with the same offence. However, he was released after two months.

&htab;322.&htab;Lastly, the ICFTU had explained that the court had refused to hear the testimony of Mr. Prusha, the Section's legal adviser (he had previously been prevented by the authorities from exercising his professional duties as an attorney in four civil cases); the only matters examined by the court had been the accusations concerning the Jazz Section's financial activities, and the court had not debated the legality of the Jazz Section's dissolution; moreover, the president of the court, Judge Vladimir Striborik, had imposed considerably lighter sentences than those requested by the State Prosecutor (a four-year sentence against Mr. Karel Srp) and had said that the Jazz Section's work was "of high quality ... (and) commendable, but needs a legalised form". Hence, stated the ICFTU, it appeared that the judge's sentences were based on section 118(1) of the Penal Code, which punishes illegal economic activities, whereas the prosecution had based its calls for severe sentences on section 118(2) which concerns the exercise of illegal economic activities "involving considerable profit". According to the ICFTU, the application of the lighter sentences under paragraph 1 of section 118 implied that the court chose to take into account only such economic activities as were conducted after 15 January 1986, the date on which the Supreme Court refused to review the legality of the administrative dissolution of the Jazz Section of the Prague division, and not those undertaken since 22 October 1984, as requested by the prosecution, which is the date of the second dissolution Decree issued by the Ministry of Internal Affairs.

&htab;323.&htab;At its previous examination of the case, the Committee had been informed that the Government, in a communication dated 28 May 1987, had sent its observations concerning the allegations of the ICFTU. It had recalled that the Jazz Section had been set up in October 1971 as a section of the Musicians' Union, a "voluntary mutual interest organisation". Its aims and duties, as well as the nature of its activities, stated the Government, were subject to the "Regulationsfor organisations" approved by the Musicians' Trade Union Central Committee. The Government had enclosed a copy of this document as well as Newsletter No. 1 (dated 30 October 1971) of the Jazz Section. The Government had also enclosed with its reply a copy of the objectives which the Jazz Section had drawn up upon its creation, namely "to promote the development of jazz music and foster its integration into society's cultural life".

&htab;324.&htab;According to the Government, the Jazz Section had considerably overstepped its mandate over the years; in addition to its activities in the area of music, it had published books and other publications on such subjects as creative arts, photography and fiction and the translation of foreign writers. It had also engaged in the production and sale of posters and the recording of music on cassettes which it then sold; it had organised exhibits for a number of organisations and other promotional activities. In the area of music, in keeping with its objectives, the Jazz Section had helped to establish groups of non-professional musicians and organised concerts and recitals for professional and amateur musicians.

&htab;325.&htab;Leaving aside the questions of legality, tax evasion, copyright infringement and others which had marked the Jazz Section's activities, the Government had indicated that, in addition to fulfilling its objectives as regards the promotion of jazz music, the Jazz Section had engaged in a number of commercial operations. According to the Government, the Jazz Section's activities had never been concerned with the occupational interests of its members, and the Jazz Section had never aspired to become a trade union organisation, or pretended to be one. Rather, its members were jazz fans, and those among them who were employed, were organised at their workplace. Most professional musicians, with the exception of self-employed artists, belonged to the Trade Union of Workers in Art, Culture and Social Organisations; this trade union was part of the workers' movement and participated in collective bargaining on behalf of its members with their employers; the fruits of this bargaining were reflected in the regulations concerning wages and conditions of work issued by state bodies. These regulations applied to professional as well as amateur musicians.

&htab;326.&htab;The Government had stated that none of the members of the Jazz Section considered their affiliation to the Section as equivalent to membership in a trade union organisation; moreover, none of them had renounced their membership in the Revolutionary Trade Union Movement owing to their membership in the Jazz Section. Thus, the Government did not consider that there was any relationship between the activities of the Jazz Section and its own obligations flowing from its ratification of Conventions Nos. 87 and 98 on freedom of association and collective bargaining.

&htab;327.&htab;On the basis of the information available to it, at its November 1987 Session, the Committee had submitted the following interim conclusions to the Governing Body:

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

(b) The Committee recalls the principle concerning the non-dissolution of workers' organisations by administrative authority and requests the Government to ensure that workers may freely establish the organisations of their choice, and manage and administer them without interference. It also requests the Government to re-examine its position concerning the Jazz Section, in the light of the foregoing conclusions and the principles of freedom of association. (c) The Committee requests the Government to supply information on the searches made of the Jazz Section's premises by the administrative authorities and the police, as well as the seizure of files and membership lists. (d) The Committee requests the Government to supply information concerning the dismissal of Mr. Karel Srp.

&htab;328.&htab;In its reply dated 18 April 1988, the Government refers to the statement made by the Czechoslovakian Government delegate before the Governing Body of the ILO in November 1987, from which it appears that the Government cannot accept the conclusions adopted by the Committee and that therefore it will not proceed according to the recommendations contained in paragraph 380 of the 253rd Report of the Committee.

&htab;329.&htab;The Government states in particular that it does not agree with the contents of paragraph 377 of the report, in which the Committee expressed the view that the former Jazz Section had been a trade union organisation. It considers it strange that the Committee stated no grounds for such a conclusion, as this was a key issue for the consideration of the complaint. The Government also objects to the fact that this conclusion was reached by the Committee after having admitted that "the regulations of the Jazz Section" did not define any trade union aspects of the Section's activities. Neither did the Committee indicate which other aspects of the Section's activities had been considered to be of a trade union nature. A careful reading of paragraphs 369 to 373 leads to the conclusion that the Committee received incomplete and distorted information concerning the Government's reply. Substantial parts of the Government's reply were omitted, relevant documents not reproduced, and changes were even made in the Government's reply, distorting the meaning of the text. The Government fails to understand the reasons for such peculiar practice, the more so since all of these changes and omissions tended to play down arguments proving that the Jazz Section had never been a trade union organisation and had never engaged in trade union activities. In these circumstances, the Government considers that the conclusions adopted by the Committee are based on a wrong assumption, namely that the members of the Jazz Section were professional musicians and that the Section defended their occupational interests.

&htab;330.&htab;The Government considers that the matter should be re-examined taking the following into account: (a) that an important passage referring to the Regulations of the Jazz Section, quoted by the Government representative in the Governing Body, had been omitted from the Government's reply and the text of the regulations of the Jazz Section and that of the resolution adopted at the constituent conference of the Jazz Section, where the main objectives of the Section were defined, had not been included in the Governing Body document (the Government wonders what other arguments are more convincing than authentic texts; it encloses the English translation of the documents in question); (b) the title "Regulations for Organisations" was used in paragraph 370, although it must have been evident that the document in question represented the statutes or regulations of the Jazz Section (in Czech, organizacní rád); the plural used in the ILO document could imply the intention to downgrade the importance of this document with respect to the consideration of this case; (c) in paragraph 370 the Government's reply was distorted by stating that the "Regulations for organisations were approved by the Musicians' Trade Union Central Committee"; neither the Government's reply, which had been sent in Czech, nor the unofficial translation into English made any mention of a musicians' "trade" union central committee, because no such trade union had ever existed; the Government's reply had been changed and a word had been added, turning upside down the information provided; (d) finally, the statement made by the Government to the effect that the members of the Jazz Section were prevailingly, i.e. predominantly, jazz fans, was distorted by stating that they were "rather" fans. This change prevented the Committee from reaching the obvious conclusion that the Jazz Section could not defend occupational interests of fans, i.e. of students, apprentices and young workers of various occupations who formed the overwhelming majority of its members.

&htab;331.&htab;The Government requests that the case be resubmitted to the Committee on Freedom of Association, together with full information provided by the Government, so that the case might be reconsidered on the basis of full and undistorted information.

&htab;332.&htab;The Government also supplies the following additional information concerning the membership of the Jazz Section. During the various years of its existence, the membership of the Jazz Section ranged from 2,500 to 4,000, states the Government. The vast majority of members, i.e. more than 90 per cent, were fans, people interested in jazz music. The percentage of fans in the total tended to increase with the growing membership. The remaining members were amateur musicians and collective members, such as libraries, which, through membership, ensured supplies of the Section's publications. Individuals ordering publications sometimes also registered as members. According to the Government, the relationship of the Jazz Section members to real trade union organisations can be illustrated by referring to the case of members of its presidium:

- Mr. Karel Srp was employed in the Panton Recording Company and was a member of the Trade Union of Art, Culture and Social Organisations' Workers;

- Mr. Cestmír Hunat was employed in the Administration of Commerce Housing Facilities and was a member of the Trade Union of Commerce Workers;

- Mr. Vladimír Kouril was employed as a designer in Metroprojekt, Prague, and was a member of the Trade Union of Transport Workers;

- Mr. Tomás Krivánek was a mechanic in the Regional Administration of Telecommunications and was a member of the Trade Union of Communications Workers;

none of them were professional musicians.

&htab;333.&htab;The Government also defines the dividing line which, in its view, lies between trade union organisations on the one hand, and other types of associations, on the other. According to Article 10 of Convention No. 87, the term "organisation" means any organisation of workers or of employers for furthering and defending the interests of workers or of employers. According to the Government, this definition means that the organisations concerned must be those of workers or of employers - and not those of any persons with common or mutual interests, and that these organisations are expected to defend the interests of workers or of employers, i.e., their occupational interests, and not any other interests. The definition can be further understood to mean that organisations claiming protection under Convention No. 87 should meet two basic conditions. At the outset, they must clearly express the intention to associate workers or employers and to defend their occupational interests and they should be able to demonstrate that their real activities consist in whole or predominantly in defending occupational interests of their members. Where these conditions are not met the national legislation, and its application in practice, is unable to provide protection in accordance with Convention No. 87.

&htab;334.&htab;In the present case, states the Government, none of these conditions had been met. The declared objective of the Jazz Section (section 2 of its Regulations) was to associate jazz musicians and friends of jazz with the objective of promoting the development of jazz music and of contributing to its progress in the cultural life of society, and by no means to defend occupational interests of jazz musicians and of friends of jazz. Consequently, professional musicians did not join the Section and its membership consisted of people sharing the same hobby. The activities of the Jazz Section had never consisted and could not consist in defending occupational interests of its members; no aspect of its activities concerned collective bargaining, conclusion of collective agreements or similar trade union activities.

&htab;335.&htab;In order to avoid further possible doubts, the Government states that the membership of a small number of amateur musicians (of different occupations) in the Jazz Section in no way implied the alleged trade union character of the Jazz Section. The situation, explains the Government, is similar to that of a number of associations and unions, such as unions of small-plot gardeners, animal- and bird-breeders, sporting club fans, etc., which according to their statutes "defend the interests" of their members. These specific interests correspond to the objectives of the organisations concerned. That is why national legislation makes a distinction between trade union organisations, which are not subject to approval or control by the state authorities, and organisations of a general nature (the Czech term is "voluntary social organisations"), the activities of which are subject to Law No. 68 of 1951. The title of the organisation is not relevant. There exist various unions, associations, federations, clubs, etc., which are covered by this Law. However, none of these organisations bears the title "trade union organisation" or "trade union" or engages in trade union activities.

&htab;336.&htab;The Government concludes by stating that governments implementing the Conventions and the ILO supervisory bodies should have a common objective, i.e. to understand fully the meaning of the Conventions. It is generally recognised that the ILO supervisory bodies cannot interpret international Conventions. Interpretations, especially extensive interpretations, might lead to uncertainties concerning the contents and scope of obligations accepted by the States concerned in ratifying a Convention. This case also shows that extensive interpretation as to the scope of the Convention could also open the way towards misusing the supervisory machinery.

&htab;337.&htab;The Committee observes that this case concerns allegations of the ICFTU relating to the dissolution by administrative authority of the Jazz Section of the Musician's Union of Czechoslovakia (MUC) and to anti-trade union reprisals, including prison sentences and dismissals of trade union leaders, and to the occupation of premises and confiscation of trade union property.

&htab;338.&htab;The Committee notes that the accounts given by the complainant confederation and the Government concerning the status of the Jazz Section, which is the subject of the complaint, are completely contradictory.

&htab;339.&htab;According to the complainant confederation, the Government interfered in the affairs of a trade union organisation. In violation of Article 4 of Convention No. 87, which is ratified by Czechoslovakia,it dissolved, by administrative authority, a trade union organisation which, according to the ICFTU, was part of the Musician's Union of Czechoslovakia (MUC), and which acted as a representative of jazz musicians, organised their performances, and negotiated honoraria and working conditions on their behalf, because of the moral support which this organisation had extended, in particular, to members of a musical group who had been tried for expressing views allegedly hostile to the Government. The dissolution had been ordered in application of the "Act on certain transitory measures to reinforce the public order", which was adopted in the wake of the events of 1968, and which permits the dissolution, at the Ministry of Internal Affairs' request, of organisations which threaten the stability of the State during a period of crisis. The courts had also imposed prison sentences on a number of members of the Jazz Section, including its Chairman, who was sentenced to 16 months' imprisonment, and its Secretary, to ten months' imprisonment, as well as other members of the Section, to seven months' and two years' imprisonment, respectively, for engaging in illegal lucrative activities, for insulting the nation or for harming the Republic's interests abroad. Still others had been given suspended sentences and were subjected to long probationary periods. In fact, according to the complainant, these persons had been convicted for their trade union activities. Moreover, the Chairman of the Section is alleged to have been dismissed on the pretext that his post of technical editor had been eliminated (whereas the post had subsequently been reinstated), and threatened with charges of social parasitism and illegal lucrative activies within the Jazz Section. Finally, the headquarters of the Jazz Section had been raided by officials of the Ministry of Internal Affairs and police officers, who had removed files, membership lists, books and cassette tapes.

&htab;340.&htab;According to the Government, on the other hand, the organisation which is the subject of the complaint is not a trade union organisation within the meaning of Article 10 of Convention No. 87, i.e. an organisation of workers for furthering and defending the interests of workers. Indeed, under the terms of its Regulations (section 2), the aim of this organisation is to assemble musicians and friends of jazz with a view to promoting the development of jazz and to contributing to its progress in the cultural life of society. According to the Government, it is in no way the aim of this organisation to defend the occupational interests of musicians and friends of jazz, and no aspect of its activities have concerned collective bargaining, the conclusion of collective agreements or similar trade union activities.

&htab;341.&htab;The Committee can therefore only note that the Government considers that the complainant has misused the supervisory machinery, since the complaint does not concern an organisation of workers for furthering and defending the interests of its members.

&htab;342.&htab;In this respect, the Committee on Freedom of Association has considered in previous reports [See, in particular, 25th Report, Case No. 158 (Hungary), para. 327] that the principles which are applicable for the purpose of determining whether an organisation is entitled to submit a complaint to the Committee are equally applicable for the purpose of determining whether an organisation is one to which the procedure for the examination of allegations of infringements of trade union rights applies. Already, in its First Report, the Committee had occasion to examine the meaning of the term "organisation of workers". It then adopted a criterion based on the conclusions unanimously approved by the Governing Body in 1937, concerning a representation of the Labour Party of the Island of Mauritius. In that case, the Committee had affirmed that it was the responsibility of the Committee to determine, in each case, the actual nature of an organisation, irrespective of its title. The Governing Body had therefore laid down the principle that it would exercise its discretion in deciding whether or not a body is to be regarded as an "industrial association" for the purpose of the Constitution of the Organisation, and would not consider itself bound by any national definition of this term. The Committee therefore declared its intention to follow the same principle in examining the receivability of all of the complaints referred to it.

&htab;343.&htab;In the present case, the question which arises is therefore whether the organisation to which the complaint refers is an occupational organisation within the meaning of the ILO Constitution and Article 10 of Convention No. 87. Since it is the Committee's responsibility to state its opinion on this point first, it must gather the most exhaustive information possible in order to reach a conclusion in full knowledge of the case. Given the information now at its disposal, the Committee can only note the obvious contradictionsbetween the assertions of the complainant organisation and the Government's statements. Moreover, the Regulations of the Jazz Section and the resolution adopted at its constituent conference fail to elucidate the nature of the activities which it intended to carry out within the framework of the Musicians' Union to which it was attached. The Committee therefore requires additional information in order to decide whether or not the organisation concerned is a trade union.

&htab;344.&htab;The Committee therefore considers that it is for the complainant confederation to supply additional information on what it considers to be the trade union nature of the Jazz Section referred to in the complaint, with particular regard to any specific activities which it may have carried out in order to defend the occupational interests of its members.

&htab;345.&htab;The Committee further considers that precise information on the specific grounds for the sentences handed down against the leaders of the Jazz Section - and in particular the texts of the judgements - and on the circumstances of, and reasons for the administrative authorities' raid on the premises of the Section would enable it to conduct a more thorough examination into the activities engaged in by the Jazz Section and its leaders.

&htab;346.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) In view of the contradiction between the complainant's opinion and that of the Government as to the trade union nature of the Jazz Section referred to in the complaint, the Committee considers that, given the information now at its disposal, it is not yet in a position to decide whether or not the organisation concerned is an occupational organisation within the meaning attributed by the ILO.

(b) The Committee therefore requests, on the one hand, the complainant confederation to supply additional information on what it considers to be the trade union nature of the Jazz Section referred to in the complaint, with particular regard to any specific activities which it may have carried out in order to defend the occupational interests of its members; on the other hand, it requests the Government to supply precise information on the specific grounds for the sentences handed down against the leaders of the Jazz Section, and on the circumstances of, and reasons for the administrative authorities' raid on the premises of the Section.

&htab;347.&htab;The Committee on Freedom of Association considered this case at its meeting in November 1987 and submitted an interim report to the Governing Body [see 253rd Report, paragraphs 385 to 391] which approved the report at its 238th Session (November 1987).

&htab;348.&htab;The Government has communicated additional comments dated 11 February 1988.

&htab;349.&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;350.&htab;In a communication dated 2 May 1987 the World Confederation of Labour (WCL) alleged that the trade unionists Luis Aquilino Marcano Gamboa, Fredy Marcano, Joel Rodríguez, Juan Vicente Martínez López (officials of the Federation of Free Trade Unions of the State of Monagas), Francelia Barreto and Miguel Angel Salazar Trinitario had been arbitrarily arrested, that their homes had been searched, that the headquarters of the Federation of Free Trade Unions of the State of Monagas had been forcibly entered and that files and the mimeograph machine of the said Federation had been seized. The communication from the WCL added that 11 days after their arrest the first three of the persons mentioned above had been released, but that all had been brought to trial before a military court on charges of subversion.

&htab;351.&htab;The Government communicated comments on 14 October 1987 in which it stated that the reason for the arrest of the persons referred to in the complaint was their connection with the clandestine "Bandera Roja" (Red Flag) organisation which publicly incites to violence; in addition it stated that the time during which these citizens had been deprived of freedom had not exceeded the statutory period and that during this period they had been placed at the disposal of the competent court, which ordered that some of them should be released and that others should be held in custody. As regards the cases of forcible entry the Government stated that all, without exception, had been preceded by the issue of the appropriate court order and that the objects seized were being held at the disposal of the court dealing with the case. In its communication the Government stressed that the arrests and forcible entries had taken place in conformity with the law, in connection with events that had disturbed the country, owing to the links or relationship of the persons concerned with subversive activities and not by reason of their status as trade unionists, because trade union activities, apart from enjoying the approval of the Government, are protected and supported by the legal situation in force in Venezuela.

&htab;352.&htab;At its previous examination of the case (November 1987) the Committee invited the Governing Body to approve the following recommendation: while noting that three of the six trade unionists (Luis Aquilino Marcano Gamboa, Fredy Marcano and Joel Rodríguez), who had been arrested, have been released, the Committee requests the Government to indicate the actual events which prompted the arrest, house search and trial of each of the six trade unionists, to provide information on the developments in the corresponding trial, and to give the exact reasons for the raiding of the headquarters of the Federation of Free Trade Unions of the State of Monagas and the confiscation of its property.

&htab;353.&htab;In its communication dated 11 February 1988 the Government provided further information according to which Juan Vicente Martínez López, Miguel Angel Salazar Trinitario and Francelia Barreto were arrested and placed on trial pursuant to an order made ex officio by the Standing Military Court of First Instance at Bolívar City on 7 May 1987. The offence charged was that of armed rebellion within the meaning of article 47(1) of the Code of Military Justice.

&htab;354.&htab;The communication adds that the proceedings took place as follows: on 8 May 1987 the investigating court made an order for the institution of proceedings; on 22 May 1987 the persons concerned entered an appeal, leave to appeal being confirmed by an order made by the Permanent Court Martial in pursuance of article 47(3) of the Code of Military Justice. On 22 June 1987, by Decree No. 1640, the President of the Republic, in the exercise of his special statutory powers, ordered a stay of proceedings in the case of Francelia Barreto; on 16 September 1987 the file was referred to the Rapporteur for the purposes specified in article 223 of the Code of Military Justice, that is, for a thorough verification of the orders, the lawfulness of their terms and definition of the acts charged; on 5 October 1987 the examining judge, by express order, declared the indictment procedure completed, as prescribed in article 224 of the said Code.

&htab;355.&htab;The Government's communication adds that in conformity with the legislative provisions applicable in this jurisdiction the file was referred to the President of the Republic for his ruling as to whether the proceedings should or should not be continued; in due course the President made a ruling directing that the trial should continue, and the trial is therefore now proceeding and has reached the stage of the swearing in of counsel for the defence. The case is at present being dealt with by the Permanent Court Martial in the city of Maturin in the State of Monagas.

&htab;356.&htab;The Committee notes the Government's statement that the judicial proceedings against the trade unionists Juan Vicente Martínez López, Miguel Angel Salazar Trinitario and Francelia Barreto were instituted ex officio in the Standing Military Court of First Instance at Bolívar City on 7 May 1987, the offence charged being that of armed rebellion under the terms of article 47(1) of the Code of Military Justice.

&htab;357.&htab;The Committee also notes that the President of the Republic ordered a stay of proceedings (discontinuance of the indictment procedure) in the case of Francelia Barreto, and also understands from the Government's comments that the other trade unionists referred to in the complaint, viz. Luis Aquilino Marcano Gamboa, Fredy Marcano and Joel Rodríguez, had been released by the competent court within the time-limits prescribed by law.

&htab;358.&htab;The Committee notes, moreover, that on 5 October 1987 the examining judge declared the investigation procedure completed and, in conformity with the statutory provisions applicable to that jurisdiction, referred the file to the President of the Republic, who made a ruling directing that the trial should continue; it notes that the case is now being dealt with by the Permanent Court Martial in the city of Maturin (State of Monagas).

&htab;359.&htab;From the particulars provided by the Government, the Committee understands that, after the preliminary investigation procedure had been declared completed, the only persons remaining on trial were the trade unionists Miguel Angel Salazar Trinitario and Juan Vicente Martínez López charged with the offence of armed rebellion under the terms of article 47(1) of the Code of Military Justice. In this connection, the Committee wishes to recall that, in cases where proceedings have been instituted against persons on grounds unconnected with the exercise of trade union rights, it has invariably stressed that the matter is outside its competence; however, it has emphasised that the question whether such a matter is within the scope of the penal law or concerns the exercise of trade union rights is not one that can be resolved unilaterally by the government concerned, but that it is within the Committee's authority to express an opinion on the matter in the light of its consideration of all the available information and, above all, of the court decision.

&htab;360.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:

&htab;While noting the further information provided by the Government, the Committee requests the Government to supply information on developments in the judicial proceedings being conducted in the military jurisdiction against the accused trade unionists, in particular to transmit a copy of the text of the decisions and the reasoning when they are rendered.

&htab;361.&htab;The Committee examined this case at its November 1987 meeting and submitted an interim report to the Governing Body. [See 253rd Report, paras. 392-424, approved by the Governing Body at its 238th Session (November 1987)]. The International Organisation of Employers (IOE) subsequently sent new allegations in a communication dated 7 March 1988. The Government sent certain observations in communications dated 9, 16 and 18 November and 2 December 1987, and 15 February and 8 March 1988.

&htab;362.&htab;Panama has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;363.&htab;In the present case, the complainant organisation alleged the issuing of warrants of arrest against seven employers' leaders (two of whom were in hiding) accused of committing crimes of sedition and of attempting to overthrow the Government; the search of the premises of the Chamber of Commerce and the Panamanian Association of Managers of Enterprises (APEDE) and the confiscation of documents; the banning of certain newspapers, radio stations and television channels; and the encouragement or tolerance by the police of measurestaken against certain employers' leaders and their undertakings during the months of June and July 1987. According to the complainant organisation, the confiscation of documents and issuing of warrants for arrest were the outcome of a public demonstration by employers' and other organisations demanding the restoration of civil liberties, the termination of the suspension of constitutional guarantees and a campaign against the economic paralysis of the country and its consequences on employment; the demonstrators called, inter alia, for investigations into accusations of government corruption, murders and other crimes, the application of constitutional provisions to the Defence Forces and the reorganisation of government institutions, the legislative and judicial bodies and the electoral tribunal.

&htab;364.&htab;The Government emphasised in its reply that the warrants for arrest and the searches were part of an investigation conducted by the Public Prosecutor of the Third Instance of the First Judicial District in full compliance with the legislation in force regarding the legal rights and guarantees, following the perpetration of acts defined in the Penal Code as crimes against the internal integrity of the State and against economic security. In its reply the Government stated in particular that citizens grouped together in a movement known as the National Civil Crusade, of which the Chamber of Commerce, Industries and Agriculture of Panama and the Panamanian Association of Managers of Enterprises are members, were guilty of incitement to rebellion, sedition and riot and to the non-payment of public services, and that leaflets were written, reproduced and distributed on the premises of the above-mentioned employers' organisations. The Government stated further that mass means of communication used by certain members of the Civil Crusade had been found on the premises and that the population had been incited to hold public demonstrations to protest against government institutions, advocating, inter alia, the overthrow of the national Government. The movement also incited citizens to carry out acts of violence in the streets, such as the erection of barricades, setting fire to property and the use of firearms. The Government pointed out that the legal proceedings instigated were in no way related to the activities of the persons concerned as the officials of occupational organisations and that the Public Prosecutor of the Third Instance of the First Judicial District had placed in the penal investigation file a large quantity of documents and leaflets collected during the search of the premises of the Chamber of Commerce, Industries and Agriculture of Panama (some of which the Government enclosed), which, according to the Government, confirmed that crimes conducive to the overthrow of the Government had been committed against the internal integrity of the State and against the national economy.

&htab;365.&htab;At its November 1987 meeting, the Committee emphasised that it was the responsibility of the Committee to determine to what extent the measures taken by the authorities to punish the activities organised or carried out in support of the objectives of the National Civil Crusade had hampered the exercise of the rights of employers' organisations and their leaders.

&htab;366.&htab;The Committee emphasised in this connection that, although the Government had provided general information on the warrants for the arrest of the employers' leaders Barria, Vallarino (both at present in hiding), Brenes, Mallol and Zúñiga, it had not indicated the specific acts of which they are accused individually; neither had it sent information regarding the allegations with respect to the warrants for the arrest of the employers' leaders César Tribaldos and Carlos González de la Lastra. The Committee noted further that the Government had not made any specific observations on the comments of the complainant organisation concerning the search of the premises of the two employers' organisations and the confiscation of documents. Indeed, according to the IOE, the report of the search carried out on the premises of the APEDE stated that nothing had been found, whereas the officials of the Public Prosecutor's Office who supervised the search claimed that a large quantity of subversive material had been found. As regards the search of the Chamber of Commerce, the IOE maintained that the police attempted - in vain - to introduce weapons into the premises and that no report is available on the search.

&htab;367.&htab;In these circumstances, the Committee requested the Government to send further detailed information on the specific acts which had led to warrants being issued for the arrest of each of the seven employers' leaders, on the state of the proceedings initiated and on the searches conducted and documents confiscated on the premises of the APEDE and of the Chamber of Commerce (including the report on the search of the latter's premises), with specific reference to the points raised by the complainant organisation. Furthermore, noting the social unrest (particularly within employers' organisations) which had led to the events of recent months and aware that the points noted above still needed to be clarified, the Committee considered that social tension would be relieved if the employers' leaders under arrest, or for whom warrants had been issued, were granted bail and if those who had left the country were allowed to return. While noting the Government's explanations concerning the refusal to grant bail to those involved, the Committee called on it to study the possibility of doing so.

&htab;368.&htab;Finally, the Committee requested the Government to send its observations on certain allegations to which it had not replied:

- the arrest of Mr. Conte, public relations adviser of the National Council of Private Enterprise (CONEP), on 13 October 1987 while disembarking from a plane arriving from the United States, no information having been received as to where or why he is being held; - prohibition of publication of the newspapers El Extra , El Siglo , La Prensa , El Quiubo and La Gaceta Financiera and of broadcasts from the radio stations Continente, Mundial, Sonora and two television channels;

- violent acts perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July 1987 in the Danté shopping centre.

&htab;369.&htab;In its communication dated 7 March 1988, the IOE states that the arrested employers' leader Aurelio Barria had been released. The IOE adds that the premises of the Chamber of Commerce are still occupied by the authorities and that the following communication media have been closed down: Channel 5 (TV), Radio Mundial, La Prensa , El Siglo and El Extra . The employers' organisations have thus been deprived of the communication media necessary for the normal exercise of freedom of association.

&htab;370.&htab;The Government reiterates its previous statements and points out that the legal proceedings relating to a series of criminal acts committed by certain members of an organisation called the Civil Crusade were by no means aimed at infringing the guaranteed rights of employers and workers to form organisations, such guarantees constituting the very foundation of the country's economic system and social peace. The complainant organisation has sent the ILO several statements and documents containing subjective assessments aimed at distorting the measures adopted by the Public Prosecutor's Office in connection with the direct criminal involvement of some leaders of nation-wide employers' organisations in incidents of a political character aimed at overthrowing the Government. The Public Prosecutor of the Third Instance of the First Judicial District, duly empowered by the national Public Prosecutor's Office in accordance with the principle of independence in carrying out its activities, is conducting the investigation into the presumed participation of a group calling itself "Civil Crusade", led by the executive committee of the Chamber of Commerce or by a part of this and other groups, in committing criminal acts arising out of instigation to "civil disobedience". This shows that any allegation of interference by any state official or body is baseless. There is also no truth in the allegations of arbitrariness and illegality of the arrest warrant issued on 4 August 1987 against Aurelio Antonio Barria, Gilberto Joaquín Mallol Tamayo, Rafael Zúñiga, Eduardo Vallarino Arjona and Roberto Gonzalo Brenes Pérez, since the warrant was issued by a competent official, within the mandate conferred upon him by law. It should also be recalled that the persons concerned have not availed themselves of the legal remedies provided for in the Panamanian rules of procedure.

&htab;371.&htab;The search proceedings referred to by the complainant organisation were carried out in accordance with section 2185 of the Judicial Code, in the presence of lawyers and leaders of the institutions subjected to search. While it is true that no evidence of the crime under investigation was found on the premises of the Panamanian Association of Managers of Enterprises, in those of the Chamber of Commerce, Industry and Agriculture of Panama, however, a wealth of documentation was found, proving the existence of the punishable act, and was duly included in the investigation file; it is worth noting that the complainant organisation has not supplied a copy of the report of the latter search (the Government encloses a copy of this report).

&htab;372.&htab;As regards the alleged investigations involving public communication media, the Government points out that no judicial measures have been adopted affecting the publication of the weekly Quiubo , the supplement La Gaceta Financiera and the daily newspaper El Extra , although an investigation is being conducted into the publication by the latter of news which is contrary to the security of the national economy, defined as a crime in section 372 of the Penal Code. The daily newspapers La Prensa and El Siglo are also under criminal investigation by the Public Prosecutor's Office in connection with repeated and continuous publication of news jeopardising the internal security of the State, which is protected by penal law. Thus, on the basis of these provisions and in view of the constant repetition of the punishable conduct defined in section 306 of the Penal Code, the competent official conducted a search in the printing press of the newspaper La Prensa and proceeded to take measures to secure the items which were the object of the investigation, in accordance with the provisions of section 2190 of the Judicial Code. The same procedure was carried out by the Sixth Public Prosecutor of the First Circuit on the premises of the newspaper El Siglo as part of the criminal investigation being conducted into the commission of criminal acts jeopardising the national economy, and in particular the crime described in section 372 of the Penal Code. The temporary closure of the radio stations KW Continente and Radio Mundial was also effected in the context of the criminal investigations arising out of the use of these broadcasting media for activities aimed at destabilising and disrupting the public order, as evidenced by the commission of criminal acts against the internal integrity of the State. It should also be pointed out that the Ministry of Government and Justice is the institution competent to deal with all matters relating to concessions for the use of radio broadcasting frequencies, in accordance with the provisions of Decree No. 155 of 28 May 1962, to which a clause was added by Decree No. 61 of 24 June 1987, according to which the above-mentioned institution may declare the expiration or cancellation of such concessions "if there is incitement to disturbance of the public order, to the commission of criminal acts or to non-observance of the Constitution or laws of the Republic and the duties laid down in them, to replacement of state bodies by violent means and to disobedience of established laws and authorities". No criminal investigation has yet been opened against any television channel, and the Government therefore denies the reference made to this effect in the complaint.

&htab;373.&htab;The Government emphasises that the judicial measures adopted with regard to certain mass communication media have by no means impaired the free exercise of freedom of expression, much less that of employers' organisations. This is evidenced by the publications of various employers' associations, chiefly in the daily newspaper La Estrella de Panamá and in the many interviews they have given over television channels and radio programmes, all of which clearly show that the elements constituting freedom of association have not been affected in the least in this country. The Government states once again that the criminal proceedings instigated have not involved any infringement of applicable constitutional and legal procedure, and that at no time has there been any denial of the rights, remedies and procedural guarantees to the persons under investigation, neither has there been any violation of freedom of association of any organisation or person.

&htab;374.&htab;Finally, the Government states that the arrest warrants issued by the Public Prosecutor's Office against Roberto González Brenes, Gilberto Joaquín Mallol Tamayo and Rafael Zúñiga for common law crimes have not been carried out, since the latter have left the country of their own accord. The Government adds that Mr. Alberto Conte was released on 27 October 1987.

&htab;375.&htab;In its communications dated 15 February and 8 March 1988, the Government states that the organisation called the National Civil Crusade, which was originally presented as an apolitical civic organisation comprised of employers', teachers' and occupational groups, gradually became a political front opposed to the national Government. This is clear from the repeated public statements and proposals made by persons on the executive committee of the National Civil Crusade, the same persons who are the subject of the complainant organisation's concern. The immediate objective of the most recent public statements made by the leaders of the National Civil Crusade is to urge and encourage a coup d'état as a means of setting up a provisional government. In this connection two paragraphs should be quoted from the document entitled "Proposal for a programme of transition to democracy", presented, published and disseminated by the leaders of the National Civil Crusade:

"Once the main obstacles to the establishment of rule of law have been overcome, and taking into account the views of the vast majority of the Panamanian people, it is proposed to set up a provisional government Junta comprising three members, who shall act on a majority basis. The present Legislative Assembly shall cease its functions, and the provisional government Junta will assume legislative power, through cabinet decrees, during the term of office of the provisional government, which should not exceed 18 months." "In accordance with the principles outlined above, we recommend that the provisional government Junta be constituted as follows: one member appointed by the opposition political parties and two members appointed by the National Civil Crusade."

Thus, continues the Government, the employers' leaders grouped together in the National Civil Crusade, which is not an employers' organisation, not only intend to claim political power through a coup d'état, setting themselves up as a government Junta in which they constitute a majority, and assuming executive and legislative power, but also aim to appoint a new electoral tribunal, a new public prosecutor's office, a new supreme court of justice, new higher courts of justice, and new attorneys and public prosecutors. It likewise intends to carry out radical reforms in the management of the foreign debt, of labour-management relations, of education and the public administration, to reform the national Constitution, the institutions of the State and the army, and to reorganise the management of Panamanian interests in the Panama Canal, all of which is to take place according to the will of two members of the National Civil Crusade and one member of the opposition parties. The dissemination of the document entitled "Proposal for a programme of transition to democracy" constitutes incitement to totalitarian rule by a group of persons, most of whom are employers, using supposedly occupational associations and interests as a cover in order to seize political power.

&htab;376.&htab;The Government states further that the arrest warrants which were the subject of the complaint presented to the Committee and the searches carried out on the premises of the two employers' organisations have turned out to be fully justified. The persons for whom the arrest warrants were issued have all been identified, some of them by their own admission, as leaders and co-ordinators of the National Civil Crusade, an organisation with completely illegal objectives, as has been shown not only by the evidence in the criminal investigation files, but also by the political "Proposal" in which this organisation states its intention to change government institutions by illegal means. Since the penal legislation contains legal rules clearly defining the criminal conduct, it is the responsibility of the State to institute criminal proceedings against those presumed guilty, in this case against those persons who publicly admitted to directing and co-ordinating the criminal organisation which is intended to carry out a coup d'état.

&htab;377.&htab;The Government reiterates that in the course of the searches carried out on the premises of the employers' organisations, evidence was seized on the participation of these organisations in the crime under investigation. On the premises of the Chamber of Commerce, the official headquarters of the National Civil Crusade, a large quantity of documentary evidence was seized, and while it is true that no such evidence was found on the premises of the APEDE, on those of the Chamber of Commerce, on the other hand, documents were found showing that instructions had been sent by telefax from the Chamber for the APEDE to duplicate thousands of copies of subversive manifestos, and identifying the persons responsible for such activities. It is childish to suggest that the police attempted to introduce weapons on the premises of the Chamber of Commerce in the course of the search while in the presence of hundreds of eye witnesses, including innumerable national and foreign press correspondents. If this had occurred, television and film records of the representatives of the press would have been circulated all over the world, and it therefore denies this accusation. There is no contradiction in the statements that no subversive documents were seized on the APEDE premises and that it was proved that the APEDE premises were, however, used for subversive purposes, since they were used as a printing office for duplicating subversive material. Although there may be confusion in press accounts, the fact remains that the National Civil Crusade operated and, moreover, still operates in both premises: those of the Chamber of Commerce and the APEDE. It is not true that the documents seized were confiscated and analysed without the elementary guarantees in order to prove accusations made several hours later; the criminal act was proved by merely reading the documents seized and, subsequently, a thorough and meticulous examination revealed the entire operating system of the illegal organisation and showed the different extents to which various persons were involved in the criminal act.

&htab;378.&htab;Notwithstanding the foregoing, continues the Government, the President of the Republic, by virtue of his constitutional powers, issued Decree No. 91 of 22 December 1987 pardoning a large number of persons standing trial and penalties for committing political crimes and related common law crimes which occurred between 8 June 1987 and the day on which the Decree was issued. The pardon extended to all of the leaders of the National Civil Crusade against whom criminal proceedings had been instituted up to that date. By Act No. 2 of 5 January 1988, the legislature granted an amnesty to all Panamanians implicated in, accused of or prosecuted for crimes against the internal integrity of the State, as defined in section 306 of the Penal Code, and for crimes against the national economy. This amnesty entered into force on 15 January 1988 and also provided for the reopening of the communication media which were under criminal investigation. However, the reopening of these media and the return of the leaders of the National Civil Crusade who had fled the country, resulted in the commission of criminal acts threatening the internal integrity of the State and the national economy; these included a substantial increase in the circulation of the above-mentioned "Proposal for a programme of transition to democracy", which is a profoundly subversive document.

&htab;379.&htab;Despite the pardon and the amnesty, the same group of persons still runs the organisation known as the National Civil Crusade and, starting in the second half of January, these citizens, all of whom are employers, resumed their subversive activities through the unlawful organisation. These persons include Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, who, inter alia, insist on adhering to their political plan aimed at carrying out a coup d'état and setting up totalitarian rule by employers. The State therefore, mindful of its constitutional and legal obligations, has instituted criminal proceedings in order to protect the legal order and security of society.

&htab;380.&htab;The Committee notes the Government's reply and, in particular, that under the pardon Decree, No. 91 of 22 December 1987, and the amnesty Act, No. 2 of 5 January 1988, the penal proceedings brought against the employers' leaders referred to in the complaint for whom arrest warrants had been issued were annulled, and the communication media which had been under criminal investigation were reopened. The Committee observes, however, that the Government states that, since the second half of January 1988, new criminal proceedings have been instituted against employers' leaders Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, after they resumed their subversive activities aimed at carrying out a coup d'état, through the unlawful organisation known as the National Civil Crusade. The Committee also notes that the complainant organisation alleged that major communication media were closed down in March 1988. The Committee notes further the information provided by the Government on the searches carried out in 1987 on the premises of the APEDE and the Chamber of Commerce, including the report of the latter search; however, the Committee notes with concern that, according to the complainant's March 1988 communication, the authorities continue to occupy the Chamber of Commerce.

&htab;381.&htab;In this respect, while the Committee takes note of the Government's statements relating to the political objectives of the organisation known as the National Civil Crusade, it wishes to point out - as it did at its previous examination of the case - that it is the responsibility of the Committee to determine to what extent the measures taken by the authorities to punish the activities organised or carried out in support of the objectives of the National Civil Crusade have hampered the exercise of the rights of employers' organisations and their leaders. In this respect, the Committee regrets that the Government has not sent detailed information on the specific facts which, in each case, led to the proceedings against employer leaders Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, and on the state of the trials and the situation of the persons concerned (in particular, whether they are detained or whether a warrant has been issued for their arrest). The Committee also emphasises that the Government has not replied to the allegations relating to the extended occupation of the premises of the Chamber of Commerce and the closure of major communication media. The Committee wishes to stress the severity of these measures and to insist that the Government send its observations in this respect as a matter of urgency. Finally, the Committee requests the Government to respond to the allegation that violent acts were perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July 1987.

&htab;382.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes with concern that, despite the Amnesty Act of 1988, new events have occurred, including the prosecution of eight employers' leaders, the extended occupation of the premises of the Chamber of Commerce and the closure of major communication media.

(b) The Committee requests the Government to send detailed information on the specific acts which, in each case, led to the proceedings against the eight employers' leaders, and on the state of the proceedings and the situation of the persons concerned (in particular, indicating whether they are detained or a warrant has been issued for their arrest); the Committee also requests the Government to send its observations, as a matter of urgency, on the allegations relating to the continued occupation of the Chamber of Commerce and the closure of major communication media. (c) Finally, the Committee once again requests the Government to respond to the allegation relating to the violence perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July 1987.

&htab;383.&htab;The World Federation of Teachers' Unions presented a complaint against the Government of Côte d'Ivoire alleging violations of trade union rights in communications dated 20 August, 1 and 8 September 1987. The Federation presented further allegations and information in communications dated 28 September and 14 October 1987 and 19 and 21 January 1988.

&htab;384.&htab;Despite numerous requests to the Government for its observations, no reply was received and the Committee, at its February 1988 meeting, addressed an urgent appeal to it for its comments on the allegations [254th Report, para. 13, approved by the Governing Body at its 239th Session, February-March 1988]. On that occasion, the Committee drew the Government's attention to the fact that it would present a report on the substance of this case at its next meeting, even if the Government's observations had not been received at that date. The Government has not replied to this urgent appeal.

&htab;385.&htab;Côte d'Ivoire has ratified the Freedom of Association and Protecion of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;386.&htab;In its initial communications, the World Federation alleges that its affiliate in the country, the National Union of Secondary School Teachers of Côte d'Ivoire (SYNESCI), was the subject of violent harassment during its 15th Ordinary Congress held in Abidjan in July 1987. In particular, the complainant lists the following acts of interference condoned by the public authorities: when a member of the Union's legitimate executive was hurt by thugs during the work of the Congress the Congress was suspended, but certain non-paid up elements went ahead with an illegal creation of an executive; the unlawful executive claiming to represent the SYNESCI then occupied its headquarters with the help of the National Police; SYNESCI's assets and its purchasing co-operative were taken over by the police and the Union's bank accounts frozen by order of the Minister for National Education in favour of the unlawful executive committee; SYNESCI's officers were threatened with removal from their public service posts and transfer.

&htab;387.&htab;According to the complainant, these actions violate Conventions Nos. 87, 98 and 151 as well as the Joint ILO/UNESCO Recommendation concerning the status of teachers, 1966. It states that the Government incited this violence in an attempt to eliminate an independent, autonomous and democratic organisation because it was helping in the formation of a national federation of unions covering various levels of education and because it maintained a certain independence vis-à-vis the unique political party.

&htab;388.&htab;In its telex of 8 September 1987, the complainant alleges that SYNESCI's Secretary-General, Mr. Laurent Akoun, was arrested on 3 September. In its telex of 28 September, the complainant announces the further arrest of Mr. Bertin Ganin, Deputy Secretary-General of SYNESCI, the Treasurer, the Assistant Treasurer and five other members of the legitimate national executive of the Union.

&htab;389.&htab;In a communication dated 14 October 1987, the complainant supplies a list of 55 SYNESCI activists who were the subject of transfers when the new school year began, contrary to the rules governing scholastic institutions.

&htab;390.&htab;The complainant's letter of 19 January 1988 describes the current situation, alleging that the unlawful executive had received financial support from the political authorities so as to organise meetings throughout the country under police protection. It states that on 14 September 1987, the President of the country received the unlawful executive and the press reported that he gave it his full support. It adds that the court proceedings initiated against arrested SYNESCI leaders concern "misappropriation of union funds"; on the other hand, at the date of writing, the courts had not heard the action brought by SYNESCI against the illegal continuation of the 15th Congress by the unlawful executive. On 4 December the trial of the Secretary-General, Treasurer and Assistant Treasurer commenced, and, after ten hours of hearings, they were sentenced to six and four months' imprisonment. In conclusion, the complainant states that, although two detained female members of SYNESCI have been released, they have been dismissed from the public service; three other detainees are in the Civil Prison at Yopougon, 13 are in the Séguéla Military Camp, 18 have had their salaries suspended and six are currently suspended from duties.

&htab;391.&htab;In its communication of 21 January 1988, the complainant confirms, following investigations on the spot, that the 24 teachers involved, members of SYNESCI, had respected the law and were involved in legitimate actions for the benefit of their colleagues when they were victimised by the various measures listed above. The complainant supplies a list describing the actual situation of the 24 teachers (see Annex).

&htab;392.&htab;Before examining the substance of the case, the Committee considers it necessary to recall the considerations it set out in its First Report [para. 31], and which it has several times had occasion to repeat: the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. As the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, detailed replies to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.

&htab;393.&htab;The Committee therefore deplores the fact that the Government has not sent any reply and that it is obliged, because of the time which has elapsed, to examine the case without being able to take account of the Government's observations.

&htab;394.&htab;The Committee notes that the allegations in this case concern numerous violations of the freedom of association of a national teachers' organisation, ranging from government support of an unlawful executive committee through to the continued detention or suspension from posts of its officers. It also appears that during anti-union violence led by the police during the union's annual congress, one unionist teacher was wounded. The Committee expresses its deep concern over this situation and hopes that the Government, having taken note of the following considerations, will do its utmost to ensure that respect for the trade union rights of teachers is guaranteed in Côte d'Ivoire.

&htab;395.&htab;The Committee notes that the first set of allegations centres on the Government's support (both material in the form of handing over bank accounts and occupying SYNESCI's headquarters, and psychological in the form of police protection of meetings and a visit with the President of the country) of an executive of the same union which was unlawfully set up after violence had suspended the proceedings of the union's annual congress. The Committee observes that it has had occasion in the past to consider similar allegations [see, for example, 251st Report, Case No. 1271 (Honduras), para. 286] and has recalled that freedom of association implies the right of workers' organisations to organise their affairs and activities without any interference on the part of the public authorities. In the present case, it is clear that the Government has interferred by favouring one faction to the detriment of the other.

&htab;396.&htab;The Committee observes that the original executive of SYNESCI has challenged before the courts the illegal continuation of the congress, but that as of January 1988 its action had not been heard. The Committee therefore trusts that SYNESCI will have its case heard before the courts as soon as possible.

&htab;397.&htab;As regards the arrest in September 1987 of the Secretary-General, Deputy Secretary-General, Treasurer and Assistant Treasurer and 14 other union officials (see Annex), the Committee notes that Mrs. Walbridge and Miss Diby were released after two months' detention, apparently without any charges, and that the Secretary, Treasurer and Assistant Treasurer were tried and sentenced in December 1987 to six and four months' imprisonment for misappropriation of union funds. While recognising that under Article 8 of Convention No. 87, unionists, like any other citizens or organised groups, must respect the law of the land, the Committee would nevertheless request the Government to supply it with copies of the judgements in question so that the Committee will be in a position to examine further this aspect of the case in full knowledge of the facts. Indeed, the Committee has stated on many occasions [for example, 214th Report, Case No. 1093 (Bolivia), para. 388] that trade union activities should not be used in themselves by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists. In addition, the Committee has emphasised that when it requests a government to furnish judgements in judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary; the very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known [74th Report, Case No. 298 (United Kingdom/Southern Rhodesia), para. 51].

&htab;398.&htab;As regards the 13 other SYNESCI leaders who have apparently been detained without charge or trial since 31 October 1987 at Séguéla Military Camp 500 km from Abidjan, the Committee expresses its concern over this infringement of trade union rights. It recalls that the arrest of trade union leaders against whom no criminal charges are brought involves restrictions on the exercise of trade union rights [233rd Report, Case No. 1211 (Bahrain), para. 589]. In addition, it points out that the arrest - even if only briefly - of trade union leaders for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association [236th Report, Case No. 1204 (Paraguay), para. 441]. The Committee urges the Government to release these union leaders or, if they are facing trial, to inform it of the charges brought against them and of their current situation.

&htab;399.&htab;As regards the acts of anti-union discrimination perpetrated by the authorities over the last six months, in particular the suspension of salary of two female union leaders since November 1987 and the refusal to give posts to six teacher unionists (see Annex) as well as the transfer of 55 SYNESCI activists, the Committee recalls the importance of Article 1 of Convention No. 98 and the general principle that no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities. The Committee has repeatedly stated that protection against anti-union discrimination should cover any discriminatory measures during employment, such as transfers, suspension of salaries or any other acts prejudicial to the worker [211th Report, Case No. 1020 (Mali), para. 250]. The Committee accordingly requests the Government to take the necessary measures to redress the transfers and suspensions and to inform the Committee of developments in this regard.

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

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

(c) The Committee asks that the National Union of Secondary School Teachers (SYNESCI), which has challenged the unlawful executive purporting to represent secondary school teachers, will have its case soon heard before the courts and requests the Government to inform it of the outcome of the case.

(d) The Committee requests the Government to supply copies of the December 1987 judgement sentencing three SYNESCI leaders to prison terms for misappropriation of union funds and urges the Government to release or to inform it of the charges brought against the 13 trade union leaders who have apparently been detained without charge or trial in the Séguéla Military Camp since 31 October 1987 and of their current situation.

(e) As regards the acts of anti-union discrimination taken by the authorities against SYNESCI activists over the last six months, the Committee requests the Government to inform it of the current situation of those teachers who have been suspended or transferred or have had salaries suspended because of their trade union activities or functions.

&htab;401.&htab;The complaints are made in communications from the Latin American Central of Workers (CLAT) and the International Union of Food and Allied Workers Associations (UITA) dated 9 and 16 February 1988 respectively. The UITA submitted additional information in a communication of 1 March 1988. The Government replied in communications of 5 and 27 April 1988.

&htab;402.&htab;Paraguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;403.&htab;The complainants allege in their communications of 9 and 16 February 1988 that, since 1985, when a new executive committee of the Paraguayan Cotton Company Workers' Union was elected, the General Secretary and members of the union have been continuously harassed and were finally dismissed for "repeated absences at work", although they were, in fact, carrying out their trade union tasks in accordance with the collective agreement. In some cases union activists were dismissed for militancy although they had been in the company for seven to nine years (Paraguayan legislation guarantees stability of employment after ten years of service).

&htab;404.&htab;The complainants also allege that the Labour Directorate has refused to recognise the committee elected by the general assembly of delegates on 28 May 1987, but has legally recognised the committee of a union sponsored by the company management although only 50 to 60 workers attended its constituent assembly. The complainants state that some of the members of this committee had been expelled from the legitimate union for anti-union activities.

&htab;405.&htab;Lastly, the complainants report that the company union, whichrepresents from 500 to 700 permanent workers, has been continually obstructed in attempting to carry out its normal activities and that constant violations of the collective agreement - which has not been renewed since 1974 - are taking place (working hours that are over the legal limit, disregard of the legal breaks allowed between different work shifts, and payroll deduction of dues, which have not been handed over to the union since February 1987, etc.).

&htab;406.&htab;In support of its allegations, UITA annexes to its communication of 1 March 1988 a number of judicial appeals submitted by the CAPSA union against the company and against various resolutions of the General Directorate of Labour. Those appeals refer in particular to the following considerations and facts:

- since 1986, as a result of the activities of the CAPSA union, the campaign of union persecution by the company has led to the dismissal of the union leaders Benito Rodríguez, Gumersindo Notario and José Devaca (December 1986), of the union member Angélica Riquelme (January 1987) and of the General Secretary of the union, Pedro Salcedo (February 1987). Some of those dismissed were subsequently reinstated;

- between 15 March 1987 (when the regular general assembly of the union was held and the executive committee was re-elected) and 28 May 1987, five assemblies were called but could not be held because they were, in most cases, physically prevented from convening by the Capiatá police. On two occasions they arrested union leaders (Pedro Salcedo, Victor López, Antonio Moral and Mario Estigarribia), who were released days later. On 28 May 1987, the general assembly was finally held with 232 members present, and the new executive committee was elected with Pedro Salcedo as its General Secretary. Three and a half months later, the General Directorate of Labour issued a resolution refusing to register the executive committee "owing to serious irregularities". That very Directorate had, however, recognised on 19 May 1987 a so-called reorganising committee of the union composed of 21 workers (including three former members of the union's executive committee - Miguel Angel Melgarejo, Pedro Riquelme and Juan Giménez); this had been set up on 23 April 1987 and had organised a general assembly on 17 September 1987 when another executive committee was elected consisting of Juan Ramón Ramírez (General Secretary) and the three persons mentioned above. This was recognised on 20 October 1987 by the General Directorate of Labour; - according to the by-laws, it is the responsibility of the executive committee to convene the general assembly and not of a so-called "reorganising committee". In the opinion of the complainant organisation, the facts set out here clearly demonstrate that there has been connivance between the undertaking (CAPSA) and the General Directorate of Labour for the purpose of establishing a union controlled by the undertaking.

&htab;407.&htab;The Government states in its communications of 5 and 27 Apri11988 that the complaint is aimed at implicating it in the situation as regards the internal relations between the workers' union of the Paraguayan Cotton Company and the management and, more specifically, in the issue of the election and appointment of union officials, in which the public authorities have not intervened, in accordance with the express provision of Convention No. 87 (Article 3) and section 283(2) of the Paraguayan Labour Code. The fact that the union has been obstructed in the normal performance of its functions is not attributable to the public authorities, but is due to ignorance of its rights and failure to carry out its obligations as specified in the relevant provisions (Chapter IV, sections 300 et seq. of the Labour Code).

&htab;408.&htab;The Government goes on to state that the failure to renew the collective agreement since 1974 cannot be blamed on the Government,but is the fault of the union itself since rights acquired through collective agreements depend entirely on the bargaining ability of the workers' leader, in this case Mr. Pedro Salcedo and his executive committee. The Paraguayan Labour Code lays down general guide-lines and governing principles for the subject in Part II, Chapter VI, sections 314 et seq. In addition, the Procedural Labour Code states that, when the parties are unable to come to an amicable agreement for the formalisation of collective agreements, ... disputes arising for economic and social reasons connected with the fixing of new working conditions may be settled before the Standing Conciliation and Arbitration Board (section 284).

&htab;409.&htab;As all these aspects are covered by the national legislation,if Mr. Salcedo is to justify his position as union leader he must display a willingness and some ability at least to deal with the problems affecting the members through a frank and sustained dialogue with the employer. Furthermore, the right of the union to denounce alleged irregularities to the competent national authorities is upheld by all the laws in force.

&htab;410.&htab;As regards the dismissal of union members by the undertaking,the Government states that no specific cases were mentioned but, if this did in fact occur, the trade unionist, like any other citizen, is entitled to appeal to the labour administrative authority and the courts to demand observance of the law guaranteeing his rights.

&htab;411.&htab;The Government points out that the Labour Directorate has been given legal powers to register trade union organisations or not, in accordance with section 297 of the Paraguayan Labour Code and section 4 of Act No. 1172/85. Consequently, in accordance with this mandate the power vested in the Labour Directorate to approve or refuse union registration is not arbitrary. In view of the general union situation in the Paraguayan Cotton Company (CAPSA), the labour administrative authority, at the request of a number of workers in the undertaking and in response to the petition submitted for the establishment of a reorganising committee to reactivate the institutional life of the union, since its executive committee, electedin 1985, was leaderless and its mandate had expired in March 1987, issued resolution No. 542 of 19 May 1987 recognising the reorganising committee in accordance with section 8 of Act No. 1172/85 on "Stability in the work of the union leadership". The Labour Directorate is not aware that persons who are members of the reorganising committee have been expelled for anti-union activities as the allegations state.

&htab;412.&htab;The Government adds that the executive committee of the union of workers of the Paraguayan Cotton Company (CAPSA), elected by the alleged general assembly of delegates on 28 May 1987, was refused recognition because of serious irregularities that had been reported and recorded in a file on the case, including the following facts: the assembly in question was not held in accordance with article 35 of the union's by-laws; of the 332 members assumed to have attended the assembly, 102 were not listed in the official register of active members held in the Union Registry Section of the Labour Directorate; the names of 15 people who had already left the company were duplicated; according to information received on the assembly in question, it was not held on the day and at the time indicated; the union did not comply with section 301(b) of the Paraguayan Labour Code.It will be noted that there have been innumerable breaches of specific legal provisions by the executive committee headed by Mr. Salcedo and that these affect the institutional existence of the union. This is why the Labour Directorate considered it improper to legalise the documents submitted and to register the executive committee. The Government also indicates that Mr. Salcedo has never been arrested.

&htab;413.&htab;The Government appends, among other things, a copy of the resolution of 17 September 1987 of the General Directorate of Labour refusing to register the executive committee elected by the assembly of 28 May 1987. Some of the consideranda in the resolution are reproduced below:

&htab;...

&htab;That ... (c) on 26 September 1986 an extraordinary assembly of the CAPSA labour union was held to fill the vacancies on the executive committee caused by the departure from the undertaking of some members of the union leadership, in their capacity as members of the workforce, and a request was made to the Labour Directorate in a note dated 6 October 1986, ref. No. 7533/86, for recognition of the newly formed executive committee; (d) having studied the information submitted, the Labour Administrative Authority notified the appellants of ruling No. 868 of 9 December 1986 from the Legal Adviser's Office to the effect that the request for recognition was inadmissible in that it violated article 13 of the by-laws which provided for the appointment of a "titular (voting) member" to the vacant posts and not simply of associate members. The ruling in question was duly notified to, answered and contested by the appellants in note No. 9404 of 19 December 1986; (e) the Deputy General Secretary and Deputy Treasurer of the union referred to, in a note dated 1 December 1986, ref. No. 9016, denounced irregularities committed by General Secretary Pedro Salcedo in the management of union activities. This accusation was repeated in a note of 2 March 1987, ref. No. 1532, which was signed by the officials referred to above and 27 associates; (f) in February 1987 the company penalised Pedro Salcedo, General Secretary of the union, suspending him from work, and the Labour Directorate was notified of this situation by a note of 5 February 1987, ref. No. 920; (g) on 10 March 1987, the Treasurer of the union in question transmitted to the Labour Department note No. 1771/87 denouncing irregularities committed by the General Secretary in the management of funds; (h) the irregular situation of the General Secretary, restricted by his suspension from work and legal proceedings still in progress, made it impossible to hold the ordinary general assembly within the time-limit set by article 35 of the by-laws, with the result that the union remained leaderless and the mandate of the executive committee expired. &htab;That, as the legal time-limit set for the exercise of the executive committee's functions had expired, the workers of the Paraguayan Cotton Company (CAPSA) of Capiatá, meeting together on 18 April 1987, appointed a reorganising committee and requested its recognition by the Labour Administrative Authority in a note of 24 April 1987, ref. No. 2838. The Directorate of Labour, in resolution No. 542 of 19 May 1987, registered and recognised the reorganising committee and authorised it to exercise its specific union functions, in accordance with section 8 of Act No. 1171/85. &htab;... &htab;That, on 4 June of the present year, the reorganising committee of the union submitted notes Nos. 3837, 3838 and 3839/87 denouncing the holding of a so-called assembly on 28 May 1987; that the assembly had not been convened by the reorganising committee which consequently requested that the assembly be regarded as null and void. &htab;That, in view of these accusations, the Labour Administrative Authority, invoking the powers vested in it by law, commissioned public service inspectors to clarify the facts of the case. From the substance of the report prepared on 19 June 1987 by the inspectors, from the statements given in evidence by neighbours in the area and the information obtained from the Capiatá Police Commissariat, it emerged that: (a) the assembly in question was not convened by the reorganising committee which is the only body entitled to do so under section 8 of Law No. 1172/85; (b) many members of the union, who were assumed to be present at the assembly of 28 May 1967, had been doing their usual work on the premises of the enterprise at the time; (c) these persons were listed as having attended the assembly in the capacity of associate members for zones that are not represented on the union; (d) the assembly did not take place in the place and on the date stated in the minutes of the assembly transmitted to the Labour Administrative Authority. &htab;That, on 25 June 1987, by a note, ref. No. 4327, also bearing the signatures of the persons who are said to constitute the executive committee of the union, which has not yet been registered with the Labour Administrative Authority, Messrs. Pedro Salcedo, Gumercindo Notario Orrego, Angel Coronel Bullón and Benito Rodríguez called into question and refused to acknowledge the existence of a reorganising committee recognised by the competent authority: (a) alleging that the members of the committee had been expelled as members of the union at the regular assembly allegedly held by them; (b) requesting the Labour Administrative Authority to abstain from intervening in questions pertaining to the union on the grounds that it constituted an illegal interference. &htab;That, from the analysis of the above-mentioned considerations and from the voluminous documentation appended to the file on the case, apart from the records of the reorganising committee and the report drawn up by the inspectors appointed, it seems evident that the regular general assembly, with the election of the executive committee of the union on 28 May 1987, was a fictitious event that consequently is rendered null and void by the evasion of legal provisions which are binding on the members of any occupational group by virtue of their status as rules of public order. ...

&htab;414.&htab;The Committee notes that, in this case, the basic allegation made by the complainant concerns the refusal of the General Labour Directorate to register the executive committee of the CAPSA union considered by the complainant as authentic and headed by Mr. Salcedo, while nevertheless agreeing to register another executive committee (headed by Mr. Ramírez and Mr. Melgarejo) which, in the opinion of the complainant organisation, serves the employers' interests and is the product of connivance between the company and the labour authorities. The Committee takes note of the Government's reply. It notes that it has claimed that there were serious irregularities in the ordinary general assembly at which the executive committee headed by Mr. Salcedo was elected, and denies that Mr. Salcedo was arrested.

&htab;415.&htab;In this respect, the Committee wishes to emphasise firmly that, irrespective of whether or not the irregularities alleged by the Government took place, when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbiter and not by the administrative authority. In these circumstances, the Committee concludes that the General Directorate of Labour, in deciding in favour of the group headed by Mr. Ramírez and Mr. Melgarejo, has engaged in anti-union interference in violation of Article 3 of Convention No. 87 which stipulates that the public authorities must refrain from any interference that would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities. The Committee urges the Government to leave the task of settling this type of situation to the judicial authorities in the future.

&htab;416.&htab;Furthermore, the Committee notes that the Government has not commented specifically on the following allegations concerning acts of anti-union persecution against the union group led by Mr. Salcedo and acts favouring the creation of a union movement with ties to the employer: first, the dismissal of union leaders and members of the group headed by Mr. Salcedo (although some have since been reinstated); secondly, the action taken, especially through the police, to prevent five regular assemblies from being convened by Mr. Salcedo, and the detention of the group's leaders for a number of days. In addition, it notes that a small number of workers are said by the complainant organisation to have attended the general assembly called by Mr. Melgarejo.

&htab;417.&htab;In this respect, the Committee must deplore the fact that thegeneral assemblies called by Mr. Salcedo were repeatedly prevented by the police and that members of the executive committee were detained. It also regrets the dismissals alleged in this case and stresses that the legislation should provide for sufficiently effective civil remedies and penal sanctions so as to deter acts of anti-union discrimination and of interference in union life and activities.

&htab;418.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee urges the Government to ensure that, in future, the labour authorities abstain from any act of interference in matters pertaining to the election of union leaders.

(b) The Committee deeply deplores the detentions and other acts of interference and anti-union discrimination alleged in this case, and requests the Government to take steps to ensure that the legislation guarantees adequate protection against such acts through sufficiently effective civil remedies and penal sanctions.

(c) The Committee requests the Government to inform it of the progress in and results of the legal proceedings set in motion by the CAPSA Union in relation to the questions raised in this case, in particular the dismissal of union members and the refusal to register the executive committee headed by Mr. Salcedo.