&htab;24.&htab;The Committee on Freedom of Association examined this case at its meeting in February 1988. [See 254th Report of the Committee on Freedom of Association, paras. 450 to 473, approved by the Governing Body at its 239th Session (Geneva, February-March 1988).] Since then the Government has provided further information as set out in communications dated 28 April and 18 October 1988.

&htab;25.&htab;Zambia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has ratified the Workers' Representatives Convention, 1971 (No. 135).

&htab;26.&htab;This case originally involved four sets of allegations concerning the free exercise of trade union rights. The only matter which remained outstanding after the Committee's previous examination of the case related to the confiscation by the authorities of the passports of the Chairman (Mr. Chiluba) and Secretary-General (Mr. Zimba) of the ZCTU, thereby making it impossible for them to participate in a number of international and ILO meetings. At paragraph 473(a) of its 254th Report, the Committee pointed out that it regards participation in such meetings as a fundamental trade union right and requested the Government to keep it informed of developments in this matter.

&htab;27.&htab;In a communication dated 28 April 1988 the Government stated that all passports are the property of the Government and that they may be withdrawn by the State at any time depending upon the circumstances. It further states that the confiscation of the passports of Messrs. Chiluba and Zimba was for reasons connected with the security of the State, and was quite unconnected with their trade union activities. In the opinion of the Government, such matters clearly fall outside the purview of the Governing Body or any of its committees.

&htab;28.&htab;In a further communication dated 18 October 1988, the Government intimated that the President of the Republic of Zambia had, on 28 April 1988, directed that the passports of Messrs. Chiluba and Zimba be returned to them. Subsequently, both Mr. Chiluba and Mr. Zimba had attended the 75th Session of the International Labour Conference in June 1988. Mr. Chiluba had travelled to Zimbabwe, Lesotho and Malawi on trade union business, and was due to travel to Senegal in November 1988 to attend a conference there. Mr. Zimba, meanwhile, had travelled to China and to the United States of America.

&htab;29.&htab;The Committee notes that the Government has returned their passports to the Chairman and Secretary-General of the ZCTU, and that both officials were able to participate in international and ILO meetings during 1988.

&htab;30.&htab;As regards the proposition that matters relating to the security of the State fall outside the purview of the Governing Body or its committees, the Committee recalls that it has consistently taken the view that it is not competent to consider purely political allegations [ Digest of Decisions and Principles of the Committee on Freedom of Association of the Governing Body , 3rd edition, 1985, para. 199]. Self-evidently, many matters pertaining to the security of the State are of a "purely political" character and as such are indeed outside the competence of the Committee. However, the Committee has also taken the view that measures of a political nature which are not intended to restrict trade union rights as such may nevertheless be applied so as to have that effect in practice [ Digest , para. 197]. To the extent that they have this effect, measures of a political nature are within the competence of the Committee [ Digest , para. 199]. In this context, the Committee considers that the withdrawal of the passports of trade union leaders is within the competence of the Committee.

&htab;31.&htab;The Committee also wishes to reiterate the special importance which it attaches to the representatives of workers' and employers' organisations being able to participate in meetings of international organisations to which they belong. It also stresses the importance of the right of workers' and employers' representatives to attend and participate in meetings of the ILO [see in this regard, paras. 672-677 of the Digest , and para. 470 of its 254th Report concerning the present case].

&htab;32.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes that the Government has returned their passports to the Chairman and Secretary-General of the ZCTU, and that both officials were able to participate in international and ILO meetings during 1988.

(b) The Committee recalls that questions of a purely political character are beyond its competence, but that it is competent to deal with political issues where measures of a political character are applied in such a manner as to restrict trade union rights.

(c) The Committee reiterates the special importance it attaches to the right of workers' and employers' representatives to attend and to participate in meetings of international workers' and employers' organisations and of the ILO.

&htab;33.&htab;The Danish Federation of Trade Unions (LO) presented a complaint of violations of trade union rights against the Government of Denmark in a communication dated 19 August 1988. The Danish Seamen's Union presented its complaint on the same matter in letters dated 7 September and 7 October 1988. By a letter dated 7 November 1988, the Salaried Employees and Civil Servants Confederation (FTF) supported the LO's complaint on behalf of its following member organisations: the Danish Merchant Navy Officers Association, the Association of Shipmasters in Denmark, the Danish Radio Officers Union and the Danish Ship Personnel Catering Association. By a letter dated 24 January 1989, the Danish Federation of Managerial Staff (FR) also endorsed the LO's complaint.

&htab;34.&htab;The Government supplied its observations on the case in a communication dated 17 January 1989.

&htab;35.&htab;Denmark has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;36.&htab;In its letter of 19 August 1988, the LO alleges that the Danish Government has infringed Conventions Nos. 87 (Articles 2 and 3) and 98 (Article 4) by its introduction, on 2 December 1987, of a Bill on the Danish International Ship's Register which finally became law on 23 June 1988. It calls for a direct contacts mission to visit Denmark to discuss the Government's intervention.

&htab;37.&htab;The complainant refers in particular to section 10 and quotes the Minister's speech introducing the Bill on this point:

The other crucial element in the Bill is that the existing collective agreements on wage and working conditions will not be applicable to ships in the Danish International Ship's Register. New collective agreements must be concluded, explicitly stating that they shall apply only to employment in ships registered in the Danish International Ship's Register. Such collective agreements, concluded with Danish trade unions, will only comprise persons who are residents in Denmark, or who by virtue of international obligations are put on an equal footing with Danish citizens. Similarly, a collective agreement concluded with a foreign organisation, will only comprise persons who are citizens in the country where the organisation is domiciled, but Danish labour law will also be applicable to such collective agreements. I am aware that these rules represent a new idea in Danish labour law, but I consider it a necessity, if the Act is to work at all, that shipowners have the possibility of concluding special agreements for employees on ships in the Danish International Ship's Register.

&htab;38.&htab;The explanatory comments on section 10 of the Bill state the following:

Subsection 1 states that collective agreements concerning wage and working conditions for employees on ships registered in the Danish International Ship's Register shall explicitly state that they comprise such employment only. This means that existing collective agreements on wage and working conditions concerning employment on ships, concluded between Danish shipowners and Danish trade unions, will not comprise ships being transferred to the Danish International Ship's Register. For employment on such ships new collective agreements have to be concluded , explicitly stating that they comprise employment on ships registered in the Danish International Register. [Emphasis added.]

Subsection 3 states that a collective agreement concluded with a foreign organisation - besides comprising the seafarer who is a member of the organisation - will also comprise the seafarer who is a citizen in the same country where the organisation is domiciled, whether this seafarer is a member of another organisation who has not concluded any agreement with the relevant shipowner or shipowners' association, or whether he is not a member of any organisation. Collective agreements concerning wage and working conditions for employees on ships in the Danish International Register may be concluded with several - Danish as well as foreign - trade union organisations at the same time. Wage and working conditions for employees who are hereafter not covered by a collective agreement, must be agreed between the individual employee and the relevant shipping company or a person authorised by this company to do so.

Subsection 4 means that the relations between shipowners with ships registered in the Danish International Register and foreign trade union organisations are otherwise governed by Danish collective labour law. Foreign trade unions will thus have the same opportunity as Danish trade unions to demand negotiations on the conclusion of collective agreements and to take industrial action in support of their demands. It further follows from the Bill that the question of industrial action taken in support of a demand for conclusion of collective agreements may be brought before the Industrial Court. The same applies to questions concerning violation of existing collective agreements unless otherwise explicitly agreed between the parties.

&htab;39.&htab;According to the LO, the question of section 10's incompatibility with ILO Conventions ratified by Denmark was raised both during the first reading of the Bill and in correspondence with the Ministry of Industry. The Minister, however, refused the LO's request for discussions and replied that:

The international conventions, etc. in question do not, however, prevent the fixing by legislation of certain general rules for collective agreements. The Working Environment Act and the Holiday Act for example contain rules which cannot by agreement be circumscribed to the detriment of wage earners, and in the legislation of other countries there are often rules on the conditions in which a trade union organisation may raise a demand for a collective agreement for its members, and thus on the coverage of a collective agreement, not least where several organisations raise a demand for an agreement at the same time.

&htab;40.&htab;The LO, on the other hand, maintains that section 10(1) represents an intervention in existing collective agreements to an unprecedented level inasmuch as it means that existing collective agreements on wages and working conditions in those ships transferred to the Danish International Ship's Register are cancelled once the ship is registered in that Register. Without this legislative intervention, the collective agreements would have been in force until 1 March 1991; employees are now forced to endeavour to conclude new agreements with the employer. Likewise, states the LO, section 10(2) and (3) represent a curtailment of the organisations' freedom to bargain collectively in the future and thus once again disregard Denmark's international obligations.

&htab;41.&htab;According to the complainant, simultaneously with the reintroduction of the Bill in June 1988, the Parliament passed bills amending the tax legislation which, in practice, establish tax exemptions for people employed on vessels registered in the Danish International Ship's Register. From parliamentary question No. 22 and the reply from the Minister of Taxation, the following appears:

Question No. 22:

Is the coming into force of the Act conditioned by prior conclusion of collective agreements?

Reply

It is a condition for the coming into effect of the proposed rules on tax exemption that seamen, etc., who serve on board ships registered in the Danish International Ship's Register, are paid according to wage agreements which are internationally competitive.

&htab;42.&htab;Moreover, states the LO, under subsection 2 of section 10, Danish wage-earner organisations can only conclude agreements for persons domiciled in Denmark. It follows from subsection 3 of section 10 that foreign wage-earner organisations may conclude parallel agreements for their own nationalities. Thus, a Danish ship registered in the Danish International Ship's Register may, for example, conclude three agreements, one for Danes, one for Poles and one for Philippine nationals. The effect of this is that the Danish workers' organisations must choose between concluding a collective agreement on terms which leave no possibility for making a living in Denmark, or they may leave the jobs to foreign workers. The legislative intervention is in other words not accompanied by adequate safeguards to protect workers' living standards.

&htab;43.&htab;The LO points out that Denmark has previously committed flagrant breaches of ILO Conventions Nos. 87 and 98. It refers to Cases Nos. 1338 and 1418, as well as two further complaints before the Committee which had not at that date been examined. In comparing the Act on the Danish International Ship's Register with the Committee's reasoning in these past cases, the LO stresses the following points:

(a) the Act is an intervention in already concluded agreements;

(b) it has a direct impact for a long period (i.e. up to 1 March 1991 when already existing agreements were due to be re-negotiated);

(c) it not only changes the terms of the agreements (as in Case No. 1338), but involves the complete removal of agreements as concerns ships registered on the Danish International Ship's Register;

(d) this legislative intervention has not been negotiated with the wage earners and the Minister of Industry has refused a request to discuss the matter with their union;

(e) the Act is not part of the overall economic policy of a government, but hits selected wage-earner groups. The Government's stated reason for the proposal, namely to assist the shipping trade, does not necessitate the intervention chosen because the shipping trade may be helped in other ways (e.g. by direct subsidies, improved conditions for financing, abolition or reduction of employers' costs);

(f) the Government's objectives set out in the Minister of Taxation's above-mentioned statements could have been achieved by voluntary agreements. After all, once the rules on tax exemption have thus been conditioned by the conclusion of (new) "competitive" agreements which, according to the Government, Danish wage earners will seek out voluntarily in the interest of maintaining employment, it seems superfluous to remove compulsorily the collective agreement as occurs under subsection 1 of section 10.

&htab;44.&htab;Turning to the alleged violation of Article 2 of Convention No. 87, the LO points out that due to the international nature of shipping, the Danish trade unions have traditionally also organised foreign wage earners in this area. If, however, trade unions are prevented from concluding agreements which are to comprise foreign wage earners as well, then the right of an employee to join an organisation of his own choosing is also violated. [The LO refers to the General Survey by the Committee of Experts on the Application of Conventions and Recommendations , 1983, para. 146, and the Committee on Freedom of Association's Digest of Decisions and Principles on Freedom of Association (3rd edition, 1985), para. 254.]

&htab;45.&htab;In its letter of 7 September 1988, the Danish Seamen's Union alleges that the adoption of the Act on the Danish International Ship's Register invalidates current collective agreements and quashes the rights of seafarers. It claims that the sole object of the Act is to enhance the competitiveness of the shipowners by depreciating the workers' wages and other terms of employment. In support of this, it quotes the Minister of Industry's introduction of the Bill to the Danish Parliament:

The Bill aims to strengthen the competitiveness of the shipowning business and, thereby, counter the trend towards transferral to flags of convenience (flagging out). The establishment of a Danish International Ship's Register will enable Danish shipowners to employ foreign crews on the wage terms applying in the native countries of those crews.

&htab;46.&htab;The Act prevents the Danish Seamen's Union from entering into collective agreements for a significant part of its own members. The Danish Seamen's Union claims that now about 400 of its members annually cannot be embraced by the agreements entered into by it, either because - notwithstanding that they are Danish citizens - they have no residence in Denmark, or because - despite the fact that they may have been sailing on Danish ships for several years - they are not included in the circle of persons towards whom Denmark has international obligations as is required under section 10(2).

&htab;47.&htab;This complainant points out that within one week of the coming into force of important delegated legislation, the Act substantially curtailed the scope of the merchant shipping agreements applying until then, because 82 per cent (measured in terms of gross register tonnage) of the Danish merchant navy was transferred to the Danish International Ship's Register and thus withheld from the provisions of the agreements hitherto in force.

&htab;48.&htab;The Danish Seamen's Union also refers to the Danish Government's past interventions in collective bargaining which have been criticised by the ILO supervisory bodies (Cases Nos. 1338, 1354 and 1418) as proof of the present Government's attitude towards the ILO Conventions which have been ratified by Denmark. This complainant accordingly endorses the LO's request that a mission visit Denmark to discuss this case. It also calls for action so that the Government understands the essence of the ILO Conventions as applied to the concrete case; that it understands the essence of the principles of workers' organisations' free right of negotiation as contained in the Conventions; that the Government realises that the interpretation of the Conventions is carried out by the ILO; and that the Government realises that the ILO's interpretations of the Conventions are binding on the member States that have ratified them.

&htab;49.&htab;In a subsequent communication dated 7 October 1988, the Danish Seamen's Union states that after the adoption of section 10 of the Act, the largest association of shipowners (the Danish Shipowners Association) has now concluded collective agreements with shipping organisations from the Philippines and Singapore. Under these agreements, the employers agree to pay hourly wages to able-bodied seamen from these two countries at the rate of 20 kroner and 27 kroner respectively. By comparison, the employers are obliged to pay Danish seamen 54 kroner per hour. It adds that other terms of wages and employment have been correspondingly depreciated for seamen from the Philippines and Singapore, a difference in treatment which is, according to this complainant, motivated solely by the nationality of the persons concerned.

&htab;50.&htab;In its communication of 17 January 1989, the Government explains the background to the adoption of the Act as follows: in recent years a growing number of Danish ships have been registered in international shipping registers (such as exist in Great Britain, France, the Netherlands and Norway), a process called "flagging out". A consequence of this is that all collective agreements automatically lapse and the ships are no longer subject to Danish legislation. According to the Government, if the flagging out of Danish ships continued at that rate, by 1990 Denmark would no longer have a role to play as a shipping nation. The Act in question is therefore an alternative to flagging out to international ships' registers.

&htab;51.&htab;The Government points out that under its Act ships registered in the Danish International Ship's Register will still be subject to Danish legislation, for example the social security rules laid down in the Danish Seamen's Act shall apply to all persons employed on board these ships.

&htab;52.&htab;It states that, before the Act, in order to ensure the employment of Danish seamen on board Danish ships, it was necessary to improve the competitiveness of Danish shipowners without deteriorating the employment situation and the standard of living of Danish seamen. The only realistic solution was to set up a Danish International Ship's Register for big ships engaged in foreign trade in combination with tax reliefs for seamen serving on board such ships. If this had not been done, Danish shipowners would have been ousted by the international competition or they would have adopted flags of convenience.

&htab;53.&htab;When the Government was preparing the Bill on this matter it provided that one of the effects of registration in the Danish International Ship's Register is tax exemption for seamen employed on such ships, as they are paid at terms which are competitive. According to the Government, such a tax exemption would not have been compatible with a continuation of the collective agreements in force because it would have meant enormous wage increases for the employees and no improvement in the competitiveness of the shipowners. It claims that, according to general principles of law, the tax exemption has in itself changed the basis upon which the collective agreements were concluded. The Act should thus not be seen as an intervention in existing agreements, but as a necessary prerequisite for the tax exemption and as an alternative to other existing international registers of ships. The shipowners may free themselves from the collective agreements by transferring their ships to one of these registers.

&htab;54.&htab;The Government maintains that the Act does not prejudice the right of organisations to negotiate collective agreements for ships in the Danish International Ship's Register. On the contrary, section 10(1) presupposes that pay and working conditions on these ships should be fixed on the basis of collective agreements following voluntary negotiations. The Act does not interfere in the recruitment of employees, their terms of employment or the collective agreement applying to them. The aim of the Act is not directed against organisations or employees, but is solely of an economic nature. It is the Government's opinion that the Act is absolutely necessary in order to secure employment on board Danish ships in accordance with Danish standards and it adds that it has committed itself to work to promote employment.

&htab;55.&htab;Turning to the specific elements of the complaint, the Government denies that the Minister of Industry did not comply with the LO's request for discussion and points out that, prior to the presentation of the Bill in Parliament, meetings were held concerning the Government's work to set up a Danish International Ship's Register between the Minister of Industry and representatives of both parties. It adds that the Bill was sent to the seamen's organisations for their opinion on 2 December 1987 at the same time as it was introduced in Parliament. In response to this consultation the Minister of Industry received a letter of 26 February 1988 from the LO in which the question of the relation of the Bill to ILO Conventions was raised. In his reply, by letter of 14 March 1988, he stated:

I have consulted the Ministry of Labour and the Ministry of Foreign Affairs about the question of the relation of the Bill to international Conventions. The Ministry of Foreign Affairs has stated that its legal department which has scrutinised them [Conventions Nos. 98, 87, the European Human Rights Convention, ...] finds that there is no conflict between these commitments and the provisions concerning pay and working conditions contained in the Bill on the Danish International Ship's Register. [...] The present Bill is in compliance with these international Conventions as it gives trade unions the right to demand negotiations concerning the conclusion of collective agreements and the right to take industrial action in support of such claims in accordance with the normal principles of collective labour law, also in relation to shipowners with ships registered in the Danish International Ship's Register.

&htab;56.&htab;The Government adds that the Minister's reply told the LO that these international Conventions, etc., do not prevent the passing of legislation laying down certain general rules concerning collective agreements: for example, the Working Environment Act and the Holiday Act lay down binding rules which it is not possible to deviate from to the detriment of the employees. Likewise the legislation of many other countries frequently contains rules concerning the conditions under which a trade union may call for the conclusion of a collective agreement. According to the Government, in a letter of 7 April 1988 the LO reiterated its views and did not request further discussions. Consequently, it was deemed unnecessary to reply to this last letter. The Government adds that the organisations were also able to express their views on the Bill through the Parliamentary Trades Committee.

&htab;57.&htab;As regards the allegation that under this Act Danish employees on ships are faced with the choice between concluding a collective agreement containing poor conditions or leaving jobs on ships to foreign workers, the Government notes that the aim of the Act is the contrary, viz. to ensure the employment of Danish seamen on board Danish ships under Danish terms fixed by collective agreements between employers and employees. All persons covered by a Danish collective agreement shall continue to be paid the wages fixed by this agreement, irrespective of nationality. It adds that new agreements have already been concluded between the relevant shipping organisations on exactly the same terms as earlier with the only change that the wages have been reduced by amounts corresponding to the tax relief. This means that Danish seamen are guaranteed the same standard of living as earlier and at the same time their employment situation has been improved. Moreover, according to the Government's information, the organisations have agreed that in ships with "mixed" crews, all crew members shall be paid wages in accordance with the Danish collective agreement for the same work. It adds that section 10(2) of the Act expressly provides that Danish collective agreements may apply to persons who are to be treated on an equal footing with Danish citizens by virtue of international commitments or who reside in Denmark.

&htab;58.&htab;As regards the allegation that the Act interferes in already concluded collective agreements, the Government recalls that the Act was adopted as an alternative to already existing international ships' registers. When looked at in the context of the above-mentioned tax exemptions for persons employed on ships which are registered in the new Register, the situation is, in the Government's opinion, different from that existing when the collective agreements concerned were concluded. Ships which are not registered or which do not qualify for registration in the new Register will still be bound by the collective agreements in force.

&htab;59.&htab;As regards the alleged excessively long effect of the Act, the Government states that if this Act had not been adopted, Denmark would not have been able to survive as a shipping nation after 1990 because of flagging out. The explanatory comments on the Bill (referred to by the LO) note this serious development and its consequences for foreign-exchange earnings and employment on board the ships and in related occupations.

&htab;60.&htab;As regards the allegation that this form of legislative intervention was not necessary since other methods could have resolved the flagging out phenomenon, the Government replies that the alternatives proposed by the LO are not realistic. The risk of abuse and unintended side-effects is very real and there is no guarantee against flagging out to foreign registers of ships. The instruments mentioned by the LO have been applied for a long period of time without the desired effects.

&htab;61.&htab;The Government states that the LO's allegation that the Government could have achieved its objectives by conclusion of voluntary agreements is questionable and of a hypothetical nature. The Government is of the opinion that the introduction of the Danish International Ship's Register was absolutely necessary and that the situation could quickly develop into chaos if the Government awaited negotiations with a number of organisations having differing degrees of incentive. This is why the legislation was introduced as a general regulation for ships registered in the Danish International Ship's Register and it was foreseen that the more detailed conditions of employment in this special field be agreed upon by the conclusion of collective agreements.

&htab;62.&htab;The Government denies that the Act infringes Articles 2 and 3 of Convention No. 87 since its aim is not to curtail the right of workers to join organisations or the right of such organisations to safeguard and protect their members' interests. It is correct that due to the special conditions in the international shipping trade there may be competing organisations from many nations. However, all organisations are equal as regards rights and duties in connection with collective bargaining, industrial action and conclusion of agreements. The Government refers in this connection to section 10(4) which expressly states that the Industrial Court Act shall apply in cases where a foreign organisation is involved.

&htab;63.&htab;In denying the alleged infringement of Article 4 of Convention No. 98, the Government reiterates that the aim of the Act is that working conditions should be regulated through collective agreements following voluntary negotiations between the parties. As regards the agreements with organisations from the Philippines and Singapore mentioned by the Danish Seamen's Union, the Government notes that these are agreements concluded following voluntary negotiations and have nothing to do with discrimination. It repeats that the Act was a necessary alternative which preserved jobs on board Danish ships on Danish terms of employment. Moreover, the Act lays down general guide-lines in a quite new and very special field in response to the developments in international shipping. It is based on the assumption that this field is regulated by conclusion of collective agreements. Current developments have confirmed that the field is regulated by collective agreements which do not entail deterioration in the living standards and employment opportunities for seamen. It claims that this legislative intervention does not go further than what is absolutely required in this case.

&htab;64.&htab;Lastly, the Government states that the present case has been sufficiently elucidated and it is thus unnecessary to call for direct contacts between the ILO and the parties to the case.

&htab;65.&htab;The Committee notes that this case involves three basic allegations relating to the Act to set up a Danish International Ship's Register of 23 June 1988: (1) that the Act was adopted without negotiations or consultations; (2) that its section 10 violates Articles 2 and 3 of Convention No. 87 by dissuading workers from joining a union of their own choosing and by limiting the free functioning of workers' organisations; and (3) that its section 10 violates Article 4 of Convention No. 98 on two counts, namely that it cancels already concluded collective agreements and disallows future negotiations.

&htab;66.&htab;The text of section 10 reads as follows:

(1) Collective agreements on wage and working conditions for employees on vessels in this register shall explicitly state that they shall be applicable for such employment only.

(2) Collective agreements as mentioned in subsection (1) which have been concluded by a Danish trade union organisation, may only comprise persons who are considered to be residents of Denmark, or who by virtue of incurred international obligations shall be put on an equal footing with Danish citizens.

(3) Collective agreements as mentioned in subsection (1) which have been concluded by a foreign trade union organisation, may only comprise persons who are members of the organisation concerned, or persons who are citizens in the country where the trade union organisation is domiciled, in so far as they are not members of another organisation with which an agreement as mentioned in subsection (1) has been concluded. (4) The Industrial Court Act shall also be applicable in cases to which a foreign trade union organisation is a party.

&htab;67.&htab;Firstly, as regards the consultation question, the Committee notes that the text of the Bill was communicated by the Government to the seamen's organisations in December 1987 and that an exchange of correspondance in February-March 1988 fully aired both sides' views on the draft legislation. The Committee also notes that, according to the Government, the workers' organisations were able to express their views on the Bill through the Parliamentary Trades Committee. It accordingly considers that on this aspect of the complaint there was no infringement of trade union rights.

&htab;68.&htab;The alleged violation of Article 2 of Convention No. 87 is also, in the Committee's opinion, not proven in this case. A reading of the text of section 10 as well as the explanatory comments cited by the LO shows that freedom to join an organisation of one's own choosing is not the issue. The Committee has in the past examined cases where government pressure or favouritism allegedly influenced the trade union membership of workers and in specific factual situations - such as the unequal distribution of subsidies or granting of facilities - has found that such discrimination jeopardises the right of workers to establish and join organisations of their own choosing. Only one complainant in the present case puts forward information on this aspect of the Act in practice - according to the Seamen's Union about 400 of its members now cannot be covered by agreements entered into by the Union. However, this complainant does not allege that this situation has led the workers concerned to change unions. The Committee accordingly considers that there has been no infringement of Article 2 of Convention No. 87.

&htab;69.&htab;The law and the facts of the case present themselves differently, however, when compatibility with Article 3 of Convention No. 87 and Article 4 of Convention No. 98 is examined.

&htab;70.&htab;The Committee understands the effect of section 10 to be that the rules regarding the coverage of collective agreements - both those already in force until 1 March 1991 and future agreements which might be concluded for example when foreign ships transfer to the Danish International Register or when new ships are launched - have been changed in so far as workers who do not reside in Denmark may no longer be covered by agreements made by Danish workers' organisations. The information supplied by the Danish Seamen's Union bears this out: the employers' association has recently concluded agreements covering Filipino and Singaporean seafarers with foreign workers' organisations notwithstanding the fact that these workers are employed on Danish-flag ships and continue to be covered by Danish legislation (such as the social security laws).

&htab;71.&htab;The Committee observes that the Government justifies its legislative intervention on the following grounds: a crisis had arisen because of flagging out (characterised by loss of tonnage, foreign-exchange earnings and employment of Danes on ships and in related occupations); the competitiveness of Danish shipowners needed to be improved; other methods to redress this crisis had been applied for some time without effect; the standard of living of Danish seamen is guaranteed by the legislative package since any reduction in wages they might have to accept is balanced by tax relief (a fiscal equilibrium which has already worked in newly concluded agreements); the Act is by nature a general regulation allowing negotiation on more detailed conditions of employment; other countries already had similar legislation allowing shipowners to free themselves of collective agreements. In addition, the Government denies that all already concluded collective agreements are cancelled (e.g. they remain in force for ships which do not qualify for registration under the Act) and maintains that those agreements which have been cancelled suffered this fate because the tax relief amendments would have otherwise involved enormous wage increases for the employees and no improvement in the competitiveness of the shipowners. In the Government's own words "the tax exemption has in itself changed the basis upon which the collective agreements were concluded".

&htab;72.&htab;The Committee takes note of the Government's arguments that compelling reasons of national economic interest existed such as to justify this sort of intervention in private-sector collective bargaining which, in particular, results in the automatic cancellation of certain previously concluded agreements leading in turn to the necessity, for the Danish workers' organisations involved, of re-negotiating terms and conditions of employment for a more limited group of employees, i.e. those resident in Denmark.

&htab;73.&htab;Nevertheless, the Committee would stress in this connection the importance it has always attached to the principle of the independence of the parties to collective bargaining. This is a principle which was generally recognised during the preparatory discussions leading up to the adoption by the International Labour Conference of the Collective Bargaining Convention, 1981 (No. 154), and which the ILO supervisory bodies have relied on in many different cases of legislative intervention in bargaining. According to this principle, the state bodies should refrain from intervening with a view to changing the tenor of freely concluded collective agreements unless these are cogent reasons of general interest [see Digest , 1985, para. 593 and General Survey , 1983, para. 312]. It draws the Government's attention to the fact that many circumstances change during the life of a collective agreement (change of governments, currency fluctuations, tax reforms, oil prices), but it is for the parties themselves to debate the effects of such circumstances when the agreement is due for renewal. The Committee thus considers that the Act, in cancelling already concluded collective agreements, is not in conformity with the spirit of Conventions Nos. 87 and 98.

&htab;74.&htab;As regards the other arguments put forward by the Government to justify the contents of the Act, the Committee would recall that it is aware that in a period of economic and financial crisis a government has to act and to find solutions. But at the same time it stresses its opinion that if, for compelling reasons of national economic interest, a government considers that terms and conditions of employment could not be fixed by collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period and it should be accompanied by adequate safeguards to protect workers' living standards [see Digest , para. 641, and General Survey , para. 315].

&htab;75.&htab;In the present case the change in the scope of future coverage of collective agreements does not meet these criteria. It is not an exceptional measure in that the Government admits that it had already tried other methods to overcome the crises; it goes beyond the extent necessary in that recent agreements concluded under the new Act have adopted exactly the same terms as existed previously (except for the wage reduction corresponding to the tax exemptions) and there is an apparent understanding to apply this wage rate to ships having mixed nationality crews; the Act is permanent and yet is not of the same character as minimum labour standards legislation which sets a basic level upon which collective bargaining can build up more favourable terms and conditions of employment; lastly the Act - when read together with the tax exemptions - appears to preserve Danish resident seafarers' standard of living, an assumption borne out in practice by the Government's description of some newly concluded agreements. However, the possibility remains that future agreements will not respect the above-mentioned understanding and that, on one ship, several agreements may be concluded - applying different wage rates, work timetables, etc., depending on the citizenship of the seafarers on that ship - which do not preserve the standard of living of all the workers concerned by the measure. The information supplied by the complainant on new agreements covering Filipino and Singaporean seafarers proves this point.

&htab;76.&htab;The problem of restrictions on trade union rights based on nationality has been addressed by the ILO in a variety of instruments [see, in particular, Article 6, para. 1(a)(ii) of the Migration for Employment Convention (Revised), 1949 (No. 97), Article 10 of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) and Article 2(c) of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)], the basic principle being that equal treatment must be applied in the enjoyment of benefits of collective bargaining. The Committee accordingly rejects the Government's contention as regards this criterion as well.

&htab;77.&htab;The Committee, having carefully examined the facts of the present case and aware that this is not the first time in recent years that it has been called on to examine the Danish Government's intervention through legislation in private (and public) sector collective bargaining processes [see 243rd Report, Case No. 1338, paras. 209 to 247, approved by the Governing Body in March 1986, followed up in the 1987 observation on Denmark's observance of Convention No. 98 made by the Committee of Experts on the Application of Conventions and Recommendations; 254th Report, Case No. 1418, paras. 200 to 227, approved in February-March 1988 and 259th Report, Case No. 1443, paras. 163 to 197, approved in November 1988, both also referred to the Committee of Experts], calls on the Government to take measures to amend the Act so as to ensure that full and voluntary collective bargaining applicable to all seafarers on Danish-flag ships is once again a reality. It draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations in the context of Denmark's observance of Conventions Nos. 87 and 98.

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

(a) The Committee takes note of the explanations given by the Government on the economic difficulties facing the Danish Merchant Marine. However, it considers that section 10(2) and (3) of the Act of 23 June 1988 to set up a Danish International Ship's Register constitutes interference in the seafarers' right to voluntary collective bargaining and amounts to government interference in the free functioning of organisations in the defence of their members' interests which is not in conformity with the spirit of Conventions Nos. 87 and 98.

(b) The Committee calls on the Government to take measures to amend the Act so as to ensure that full and voluntary collective bargaining open to all seafarers employed on Danish-flag ships is once again a reality.

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

&htab;79.&htab;The complaint appears in a communication from the Unified Trade Union of Workers of the Lima Metropolitan Welfare Corporation, dated 9 March 1988. This organisation submitted additional information and new allegations in a communication of 22 April 1988. The Government replied in a communication of 24 October 1988.

&htab;80.&htab;Peru 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;81.&htab;The Unified Trade Union of Workers of the Lima Metropolitan Welfare Corporation alleges that this corporation has engaged in the following acts of anti-union interference and discrimination with a view to destroying the trade union and promoting the creation of a parallel and more compliant trade union:

- In September 1986 the corporation's general manager suspended the trade union functions (and privileges) of Mr. Víctor Otoya, General Secretary, and three other trade union leaders, under the pretext that a new executive committee had not been elected. Subsequently, on two occasions, the courts ordered the general manager to refrain from interfering in the activities and operations of the trade union; following another appeal, the matter is currently before the Supreme Court of Peru.

- In November 1986 a disciplinary administrative procedure was instituted against Mr. Víctor Otoya, General Secretary, which culminated on 25 May 1987 with his dismissal, on the grounds of public and repeated offences against officials of the corporation. According to the complainant, Mr. Otoya's dismissal was an act of reprisal for the trade union's denunciations of financial mismanagement by the Welfare Corporation's general manager, who was subsequently tried in a criminal court on charges of prevarication, mismanagement, fraud, etc. According to the complainant organisation, Mr. Otoya cannot appeal his dismissal in court until the corporation formally reconsiders his dismissal, something which it has not done because of the alleged "loss" of the pertinent administrative file.

- The general manager of the Welfare Corporation has promoted the formation of a more compliant trade union. In this connection, the complainant points out that on 25 November 1986 the general manager of the Welfare Corporation addressed a circular to all workers, notifying them that a meeting would be held to discuss the trade union's situation, stipulating that attendance at this meeting was mandatory, and appointing Messrs. Dikey Fernández and Augusto Medina to chair it. In May of 1987 these two individuals, claiming to represent the workers, signed with the corporation an instrument concerning economic and labour conditions, bypassing the trade union. Subsequently, in November 1987, a trade union sponsored by the Welfare Corporation applied for official recognition; its application was returned so that a number of observations formulated by the National Personnel Directorate might be taken into account. - In a memorandum of 5 February 1988, the general manager of the corporation informed the National Institute for Public Administration (INAP) that the complainant organisation had failed over a period of two years to elect its first (permanent) executive committee, and asked that the matter be referred to the Supreme Court with the request that the trade union be dissolved. In the same memorandum the general manager reported that another trade union was being formed "with the vast support of the workers" and requested the INAP to determine with which trade union organisation the Welfare Corporation should negotiate. In reply, the INAP stated that any agreement with the new trade union would be considered null and void, and that the executive committee of the existing trade union should be elected "as soon as possible after the conclusion of the proceedings pending before the Supreme Court" (relating to the suspension of the trade union privileges of Mr. Otoya).

- In April 1988 the trade union backed by the Welfare Corporation invited all workers to a luncheon with orchestra, food and drinks provided by the corporation; the luncheon included a "salute to the workers by the corporation's manager".

&htab;82.&htab;In addition, the complainant alleges that despite a request it made in November 1987 for the payment of a Christmas bonus as provided for in the collective agreements, the corporation's general manager presented a counter-offer in a lesser amount, which was subsequently paid without any discussion with the trade union. Likewise, in March 1988, the general manager unilaterally granted an education and clothing allowance envisaged in the collective agreements.

&htab;83.&htab;In its communication of 24 October 1988, the Government states that the dismissal of Víctor Otoya Petit, pursuant to a managerial resolution dated 25 May 1987, was based on a number of offences which were substantiated during the course of an administrative procedure in which Mr. Otoya had the opportunity to defend himself, and which took place in accordance with legal requirements. Moreover, Mr. Otoya's appeal against this resolution is still pending.

&htab;84.&htab;The Government denies that the Welfare Corporation is promoting and financing a trade union (the so-called United Trade Union of Workers), since all that can be inferred from the circular of 25 November 1986 is that the corporation recommended the holding of a meeting to inform workers of the situation of the corporation's trade union; rather than suggesting interference, this shows that workers were offered special facilities for trade union purposes. As regards the general manager's memorandum of 5 February 1988, the Government states that it did not constitute an act of interference: although the corporation appealed to the National Institute for Public Administration, it was merely with the intention of safeguarding industrial peace by requesting the INAP to identify the trade union organisation with which the corporation should bargain, inasmuch as the Unified Trade Union of Workers did not have a legally elected representative, and because there was another organisation of workers in the corporation, known as the United Trade Union of Workers, which had presented a list of claims. As regards the trade union's dissolution in accordance with current legal provisions (section 21 of Presidential Decree No. 003-82-PCM), the INAP was requested to take part in the matter under the procedure established by law, for the sole purpose of ensuring that the trade union rectify the situation and provide a legitimate representation for the corporation's workers.

&htab;85.&htab;The Government also states that it is true that a friendly luncheon was held to celebrate the Day of Public Sector Workers; however, the luncheon was organised and financed by the corporation, and not by the United Trade Union, as suggested by the complainant organisation.

&htab;86.&htab;Lastly, the Government states that the amounts of the Christmas bonus and the education and clothing allowance, envisaged in the collective agreements, were limited by the Welfare Corporation's poor financial situation.

&htab;87.&htab;The Committee notes that the complainant organisation in the present case has primarily alleged the suspension of the trade union functions of several trade union leaders by the general manager of the Welfare Corporation, the dismissal of the trade union's general secretary, Mr. Otoya, and a number of steps taken by the corporation with a view to disbanding the trade union and promoting the formation of a more compliant trade union.

&htab;88.&htab;As regards the suspension from their trade union functions of four trade union leaders since September 1986, the Committee notes that the Government has not sent specific observations in this connection, and that this matter is the subject of a new judicial appeal, following two judgements in favour of the general secretary of the trade union, ordering the manager of the Welfare Corporation to refrain from interfering in the activities and operations of the trade union. In these circumstances, inasmuch as this suspension was not ordered by the trade union itself, or by the courts, but by the Welfare Corporation's general manager, the Committee deplores the fact that for over two years the trade union leaders concerned have been suspended from their functions and requests that the suspensions in question be rescinded as ordered in two court decisions.

&htab;89.&htab;As regards the dismissal of Víctor Otoya, General Secretary of the trade union, the Committee notes that, according to the Government, he was dismissed in May 1987 for offences which were substantiated during the course of the pertinent administrative procedure, and that Mr. Otoya's appeal before the corporation is pending. In this respect, the Committee regrets that the Government failed to identify the specific offences with which Mr. Víctor Otoya was charged, whereas the complainant organisation, in referring to the administrative procedure for dismissal which invoked public and repeated offences against the corporation's officials, had specifically pointed out that the dismissal was motivated by the trade union's denunciation of financial mismanagement by the corporation's general manager, who was subsequently tried for various offences. Inasmuch as the Government has failed to refute expressly the statements of the complainant, the Committee concludes that there is reason to believe that Mr. Otoya's dismissal was due to his carrying out activities as a trade union leader. Moreover, the Committee regrets that in the year and a half since Mr. Otoya's dismissal, the corporation's management has yet to resolve his appeal for "reconsideration" owing, according to the complainant organisation, to the "loss" of the file, thereby making it impossible for Mr. Otoya to file an appeal in court. Consequently, and in the light of all these circumstances, the Committee urges the Government to take the necessary measures to have Mr. Otoya reinstated, and stresses the principle contained in Article 1 of Convention No. 98, and Article 4 of Convention No. 151, according to which workers shall enjoy adequate protection against acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.

&htab;90.&htab;As regards the allegations of interference by the Welfare Corporation with a view to promoting the formation of a new, more compliant trade union, the Committee notes the observations supplied by the Government. In particular, the Committee notes that the Government states that contrary to the allegations of the complainant organisation, the workers' luncheon held in April 1988 was not organised by the rival trade union, but by the Welfare Corporation itself and was financed by it. However, the Committee wishes to emphasise that certain explanations provided by the Government concerning other allegations related to the formation of the rival trade union are not entirely satisfactory and, at any rate, are incomplete. In particular, the Committee does not understand why the corporation would organise a meeting to inform workers of the trade union's situation, or why it would have signed an agreement concerning working conditions, without the trade union's participation, with "the workers' representatives" who appeared to be the very persons in the process of forming the rival trade union. Also, in the light of the fact that the Welfare Corporation's general manager requested the administrative authority to dissolve the trade union, and considering the Committee's conclusions set forth in the preceding paragraphs concerning the suspension of trade union leaders by the corporation's manager, and the dismissal of one of them, the Committee must conclude that the management of the Welfare Corporation has violated Article 2 of Convention No. 98, and Article 5 of Convention No. 151, by engaging in a series of actions which prejudice the trade union and promote the establishment of another trade union organisation. Consequently, the Committee requests the Government to take the necessary measures to ensure that the Welfare Corporation will not interfere again in the activities of the trade union.

&htab;91.&htab;Lastly, the Committee notes the Government's statements to the effect that the amount of the Christmas bonus and the education and clothing allowances envisaged in the collective agreements were not higher because of the Welfare Corporation's poor financial situation.

&htab;92.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes that the trade union leader Víctor Otoya, dismissed by the Welfare Corporation, was hindered in appealing to the courts because the firm lost his file. It consequently requests that Mr. Otoya, who was unable to benefit from all the necessary legal safeguards, be reinstated.

(b) The Committee requests that the suspensions affecting several trade union leaders be rescinded as ordered in two court decisions.

(c) The Committee requests the Government to take the necessary measures to ensure that the management of the Welfare Corporation will not again interfere in trade union activities.

&htab;93.&htab;By a communication dated 26 April 1988 the WCOTP submitted a complaint of violations of freedom of association in Norway.

&htab;94.&htab;The Government forwarded its observations to the Office in a communication dated 6 October 1988. These observations were received too late for the matter to be considered by the Committee at its meeting in November 1988 [paragraph 6 of the Committee's 259th Report, which was approved by the Governing Body at its 241st Session (Geneva, November 1988)].

&htab;95.&htab;Norway 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 Collective Bargaining Convention, 1981 (No. 154).

&htab;96.&htab;The complaint arises out of salary negotiations in the Norwegian public and local government sectors which took place in March and April 1986. Among the unions involved in these negotiations was the Norwegian Union of Teachers (NL), which is an affiliate of the WCOTP. By late April, the negotiations had reached a state of deadlock. On 12 May 1986 NL served strike notice upon the employers. On 22 May, a substantial proportion of the membership of the union went on strike. Other groups of public sector workers were engaged in industrial action at around the same time. These included air traffic controllers, railway engineers, employees of various public agencies (including the petroleum directorate, which has responsibility for health and safety matters on North Sea oil and gas platforms), nurses, employees of social welfare and child-care agencies, local government workers, power station staff and employees of local harbour boards.

&htab;97.&htab;Early in June the Government announced that it would introduce a special Bill to refer the various disputes to compulsory arbitration by the National Wages Board (NWB), and proscribing all further industrial action pending the outcome of the arbitration proceedings. The Bill applied to the entire public sector, including teachers, but the complainant cites press reports which suggest that this was by no means a foregone conclusion (Dagbladet, 6 June 1986):

The most difficult decision to make concerned the inclusion of teachers. The teachers' strike as such does not endanger life, health or security and Mr. Haraldseth [the relevant government Minister] said that it had been considered leaving them [teachers] out.

However it was eventually decided that members of NL should be covered by the legislation, apparently because teachers from a trade union which was affiliated to the Federation of Norwegian Professional Associations (AF) were also involved in the dispute. For technical reasons the legislation would have applied to all AF affiliates, and it was considered inappropriate that NL should be permitted to continue the strike alone. The Bill became law on 12 June 1986. All industrial disputation stopped, and the NWB handed down its decisions on 3 October 1986.

&htab;98.&htab;As regards the teaching sector, the Board reached definitive conclusions in relation to certain of the matters in dispute. However it also recommended that a bipartite committee be set up to examine a number of issues relating to the working conditions and pay of teachers. This Committee commenced operation in December 1986 and submitted its report on 15 October 1987. Shortly afterwards, NL put forward a number of claims which were intended to bring the 1986 negotiations to an end.

&htab;99.&htab;Negotiations on the basis of these claims were due to commence on 23 November 1987. At the first meeting of the negotiating committee government representatives asked each of the unions concerned for a formal undertaking to the effect that they would not initiate any strike action whilst the negotiations were on foot. All of the unions, apart from NL, complied with this request. NL had not actually made any central-level decision to take industrial action at this stage, but felt that as a matter of principle the making of such a declaration should not be a precondition of continued negotiations.

&htab;100.&htab;The Government then applied to the Labour Court for a ruling to the effect that there was a peace obligation during the currency of the negotiations. NL cross-filed seeking the dismissal of the Government's claim, and an order to the effect that the Government had acted unlawfully in trying to make the peace obligation a precondition for the resumed negotiations. In its judgment of 7 December 1987 the Court unanimously found in favour of the Government on all counts.

&htab;101.&htab;On 24 and 25 November 1987 (i.e. after the Government had issued its peace obligation ultimatum, but prior to the determination of the Labour Court) some members of NL went on strike. The union publicly dissociated itself from this action.

&htab;102.&htab;On 16 December 1987 the government negotiators presented their final offer in the form of an ultimatum. NL regarded this offer as wholly unacceptable, and on 22 December 1987 the Executive of the union decided to call a general strike of teachers on 14 and 15 January 1988. In the early part of January the union was informed that the Prime Minister would shortly make an announcement about the Government's response to ongoing problems in the teaching sector. In anticipation of this initiative, the Executive called off the strike on 11 January 1988. However, many members of the union regarded the Government's response as inadequate, and in the second half of January there were wild-cat strikes throughout the education sector. The Government refused to resume negotiations whilst these strikes continued. NL tried to persuade its members to return to work. Negotiations recommenced in early February, but were again inconclusive. Eventually, the outstanding issues were referred, with the agreement of all parties, to a Special Board for determination.

&htab;103.&htab;The Special Board handed down its decision on 15 April 1988. It reached definitive conclusions on certain issues, but referred a number of matters back to the parties for further negotiation.

&htab;104.&htab;The WCOTP alleges that the Government's decision to refer the dispute to binding arbitration in June 1986, and events subsequent to the decision of the NWB in October 1986, are incompatible with a number of provisions of the International Labour Code:

- Article 3(2) of Convention No. 87 which directs the public authorities to refrain from any interference which would restrict or impede the exercise of trade unions' right to organise their activities and to formulate their programmes;

- Article 8(2) of Convention No. 87 which requires that the law of the land must not be such as to impair the guarantees set out in Convention No. 87;

- Article 11 of Convention No. 87 which obliges ratifying States to take "all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise";

- Article 4 of Convention No. 98 which requires the adoption of measures appropriate to national conditions to encourage and to promote the full development and utilisation of machinery for voluntary negotiation between employers and unions with a view to the regulation of terms and conditions of employment by means of collective agreements; and

- Article 5(2)(d) and (e) of Convention No. 154 which state that collective bargaining "should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules" and that "bodies and procedures for settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining".

&htab;105.&htab;There is no significant difference between the Government and the complainant either as to the circumstances surrounding the decision to refer the dispute to compulsory arbitration in June 1986, or as to the course of events since that time. However there is marked disagreement as to the interpretation which ought to be placed upon those events, and as to their significance in relation to the application of the principles of freedom of association.

&htab;106.&htab;The Government points out that the entire system of industrial relations in Norway is based upon recognition of the principle of free collective bargaining, including the right to strike. The Government goes on to explain that Norwegian law draws a distinction between disputes of right and disputes of interest. These latter include disputes concerning the conclusion or amendment of collective agreements, and subject to adherence to the relevant rules relating to negotiation and compulsory mediation, it is quite in order for the parties to have recourse to industrial disputation in relation to such disputes. Disputes relating to the interpretation or validity of collective agreements are regarded as disputes of right, as are disputes as to matters upon which the parties are free to negotiate during the currency of an agreement. Industrial action in relation to disputes of right is not permissible - rather they must be resolved either by negotiation or by recourse to the Labour Court.

&htab;107.&htab;The Government accepts that in a society which recognises the right to free collective bargaining (including the right to strike), it is inevitable that "innocent" third parties may sometimes have to endure considerable inconvenience as a result of the exercise of these rights. However, from time to time strikes or lock-outs may occur which generate problems of such magnitude that the public interest requires that there be some curtailment of the right to take industrial action. This has been recognised by the supervisory agencies of the ILO, which have accepted that restrictions upon the right to strike may be permissible in relation to public servants engaged in the administration of the State, and to essential services in the strict sense of the term.

&htab;108.&htab;The Government also points out that there is no permanent legislation in Norway which prohibits industrial action even in relation to public servants or to essential services. Nor is there any provision for the reference of such disputes to compulsory arbitration. Instead, the Government examines each dispute on its merits. If the consequences of any dispute appear to be such as to endanger the life, personal safety or the health of the whole or part of the population then the Government introduces special legislation proposing that the dispute be referred to the National Wages Board for settlement. The Government claims that there is broad support for this approach, as is evidenced by the fact that where such measures have been introduced, they have been endorsed by large majorities in the Parliament.

&htab;109.&htab;The Government also draws attention to the fact that there are very close inter-relationships between collective bargaining in the various parts of the public sector in Norway, and also between the public and local government sectors. This had the consequence that when, in May and June 1986, the Government was confronted by large-scale disruption throughout the public and local government sectors it had to look at the consequences of that disruption taken as a whole. Some of the disputes - notably those involving air traffic controllers, railway engineers, port workers, power station personnel and employees of public agencies such as the petroleum directorate - were of such a nature as to merit legislative intervention in their own right. On the other hand, the effects of some of the disputes could, taken in isolation, have been endured. However when viewed from a broader perspective even they became unacceptable.

&htab;110.&htab;In the opinion of the Government, these close connections between the various disputes mean that "it must be acceptable in relation to Conventions Nos. 87, 98 and 154 to consider the damaging effects of the strikes in the public sector as a whole", and to deal with all of them on the same legislative basis.

&htab;111.&htab;Turning to the decision by the NWB to refer a number of outstanding issues to a bipartite committee, the Government points out that this recommendation was in accordance with both parties' claims before the Board. Furthermore, it is clear that any negotiations which were to take place on the basis of the committee's report were to be subject to a peace obligation. This is because the negotiations would take place during the currency of an agreement, and would deal with matters which the agreement expressly stated to be subject to further negotiation. In other words, they related to disputes of right.

&htab;112.&htab;According to the Government, the unrest in the schools in late 1987 was such that it was appropriate for the Government's representative to insist upon a no-strike commitment as a precondition of further negotiations on the basis of the bipartite committee's report. It would have been quite impossible for the Government to negotiate under threat of illegal strike action. This position was vindicated by the Labour Court.

&htab;113.&htab;Put simply, the Government considers that the negotiations which followed the report of the bipartite committee, and which led to wild-cat strikes in the early part of 1988, have no connection with the right to free collective bargaining as laid down in the relevant ILO Conventions. Responsible organisations must follow the rules and procedures set out in legislation and in the basic agreements between the industrial parties. Collective bargaining with a right to industrial action is connected with the conclusion or revision of collective wage agreements. Negotiations during the currency of an agreement are subject to a peace obligation.

&htab;114.&htab;The Committee recalls that on three occasions in recent years it has dealt with cases concerning essentially similar legislative intervention in the collective bargaining process to that which forms the basis of the present complaint. In all three cases the Committee found that the legislation in question was inconsistent with the principles of freedom of association [see Case No. 1099 (217th Report of the Committee, approved by the Governing Body at its 220th Session (May-June 1982)), Case No. 1255 (234th Report of the Committee, approved by the Governing Body at its 226th Session (May-June 1984)), and Case No. 1389 (251st Report of the Committee, approved by the Governing Body at its 236th Session (May 1987))].

&htab;115.&htab;In the present case, the Government does not suggest that the strike action in the education sector in May-June 1986 in itself constituted any threat to the life, health or security of the community. Indeed, as the complainant has pointed out, a government Minister expressly acknowledged this at the time the legislation was introduced. However, according to the Government, the decision to refer the teachers' dispute to compulsory arbitration must be looked at in the context of the widespread industrial disputation throughout the local government and public sectors at that time. Viewed in this light, the decision is said to be entirely consistent with ILO standards.

&htab;116.&htab;For present purposes, it is not necessary for the Committee to express any view as to whether legislative intervention might or might not have been justifiable in relation to some of the areas which were of particular concern to the Government. The Committee would, however, point out that in previous cases it has determined that employees engaged in the hospital sector, water supply and air traffic control can be regarded as engaged in an essential service in the strict sense of the term [see Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee , 3rd edition, paragraphs 409, 410 and 412]. On the other hand, general dock work, petroleum production, teaching and transport have not been regarded as essential services for these purposes [see Digest , paragraphs 402, 404, 405 and 407].

&htab;117.&htab;The Committee recognises that in certain highly exceptional circumstances the dislocation caused by industrial action in a number of "non-essential" sectors may cumulatively create a state of emergency such as to justify some curtailment of the right to strike - especially if the disputation is of extended duration [see Digest , paragraphs 423, 426 and 428]. However, the Committee does not consider that the effects of industrial disputation in Norway in May-June 1986 were such as to justify resort to compulsory arbitration in "non-essential" sectors such as teaching. Even assuming that there was a possible basis for intervention in relation to certain sectors which could, prima facie , be regarded as "essential", it does not follow that the effects of the strikes in the teaching sector were such as to justify intervention in that area. The validity of this proposition is in no way dependent upon whether the strikes in the teaching sector are viewed in isolation or as part of a broader pattern of industrial disputation in the local government and public sectors.

&htab;118.&htab;As regards events subsequent to the decision of the National Wages Board in October 1986, the Government is of the view that there is no basis for complaint because by law all negotiations during the currency of an agreement are subject to a "peace obligation".

&htab;119.&htab;The Committee has, on several occasions, accepted as a temporary restriction on strikes, provisions prohibiting strike action in breach of collective agreements [see Digest , paragraph 392]. However, to be acceptable, any such restrictions must be imposed only in respect of agreements or awards which are themselves the product of processes which are consistent with the principles of freedom of association.

&htab;120.&htab;The Committee has already expressed the view that the decision to refer the dispute in the teaching sector to compulsory arbitration is inconsistent with the principles of freedom of association. This has the inevitable consequence that any "award" or "agreement" which emanates from that process of arbitration cannot be said to be the product of processes which are consistent with these principles. It follows that they did not create a situation in respect of which it is permissible to proscribe the right to take industrial action.

&htab;121.&htab;The Government points out that that part of the decision of the NWB which provided for the establishment of a bipartite committee, and enjoined the parties to negotiate on the basis of its report, was in accordance with claims submitted to the Board by both the unions and the Government. In the opinion of the Committee, this factor has no bearing upon the compatibility or otherwise of the peace obligation with the principles of freedom of association. Not unreasonably, the unions appear to have assumed that they needed fully to participate in the procedures of the Board in order to protect and to promote the interests of their members. Such participation cannot be said to estop a subsequent complaint to the effect that the entire arbitral process was incompatible with international labour standards.

&htab;122.&htab;The issues raised in this case, and in Cases Nos. 1099, 1255 and 1389, clearly bear upon the manner and extent to which Norway gives effect to its obligations under Conventions Nos. 87, 98 and 154. It is appropriate, therefore, that the Committee's report be drawn to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;123.&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 effects of industrial action in the teaching sector in Norway in May-June 1986 were not such as to justify resort to compulsory arbitration. It follows that the Act of 12 June 1986 is not compatible with the principles of freedom of association. (b) As the award of 3 October 1986 was the product of processes which were not compatible with the principles of freedom of association, it follows that the prohibition of strikes in relation to matters covered by the award was also incompatible with the principles.

(c) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to its report in this case.

&htab;124.&htab;In a communication dated 14 June 1988 the Icelandic Federation of Labour presented a complaint of violations of freedom of association against the Government of Iceland. The Government sent its comments and observations in a communication dated 12 December 1988.

&htab;125.&htab;Iceland 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;126.&htab;The complainant alleges that the Provisory Act respecting Economic Measures, which was adopted by the Icelandic Parliament (the Althing) in May 1988, is incompatible with the principles of freedom of association.

&htab;127.&htab;Article 1 of the Act provided that "wage tariffs" set out in all collective agreements which were current as of 20 May 1988 were to be increased on 1 June 1988, 1 September 1988, 1 December 1988 and 1 March 1989 by reference to a fixed percentage measured against wage rates as at 31 December 1987. Agreements which provided for a lesser increase were to be amended so as to bring them into line with the prescribed percentage. Existing agreements which provided for increases greater than the prescribed levels were not affected by article 1. With the appropriate amendments, all current agreements were to remain operative until 10 April 1989, and "lock-outs, strikes, including sympathy stoppage of work, or other acts intended to force an alternative order of wages and terms affairs to that stipulated in the present Act are forbidden" (article 4). Other provisions of the Act tied increases in the price of agricultural products and in the tariffs charged by "independently functioning specialists" to the scale set out in article 1 (articles 2 and 3), and also sought to control interest rates on short-term loans (article 8).

&htab;128.&htab;The complainant states that this was the ninth occasion in the last ten years that general legislation of this kind had been introduced in Iceland, "not including Acts to prevent a trade union within a specific region from achieving amendments of wages and terms agreements (collective agreements) by means of strikes". The last occasion on which legislation of a general character had been introduced prior to 1988 was in 1983. The complainant also points out that since 1978 six of the nine legislative interventions had been introduced in reliance upon article 28 of the Constitution. This means that they were "provisory" laws issued by the President "in the event of extreme urgency" in the interval between sittings of the Parliament. All such laws have to be confirmed by the Parliament when it next meets.

&htab;129.&htab;The complainant alleges that the Act of 20 May 1988 is incompatible with Articles 3 and 8 of Convention No. 87 and with Articles 3 and 4 of Convention No. 98.

&htab;130.&htab;In support of this assertion, the complainant states that the repeated use of legislation to amend existing collective agreements serves to undermine wage earners' belief in the value of trade union membership. This is because there may appear to be little point in joining and supporting an organisation the principal purpose of which is to represent its members in collective negotiations with employers, if the outcomes of those negotiations are repeatedly set aside by legislative decree. In the long term this erosion of confidence could lead to the dissolution of trade unions.

&htab;131.&htab;The complainant also states that it was prepared to discuss the state of the country's economy with the Government prior to the introduction of the Act of 20 May 1988. However, they claim that the Government regarded the provisions of the proposed legislation relating to wage rates as non-negotiable, and that when it saw that the unions were not prepared to accept unilateral action of this kind the Government broke off the discussions.

&htab;132.&htab;Finally, the complainant expresses concern at the possibility that repeated interference by the State with voluntarily concluded agreements without reaction "may lead to Governments believing that the abolition of wages and terms agreements and of the right to negotiate be legitimate activities".

&htab;133.&htab;The Government points out that the Icelandic economy is heavily dependent upon the fishing industry. This has helped to make Iceland one of the richest countries in the world in terms of per capita GDP. At the same time, the cyclical nature of the industry also means that the economy is subject to greater fluctuation in terms of levels of GDP, inflation, etc. than in most other countries. Economic circumstances in the period 1985-87 were particularly favourable, and were reflected in substantial growth in GDP and in disposable incomes. However, the outlook for 1988 was much less promising. Fish catches were due to be reduced, and fish prices fell markedly. Estimates by the National Economic Institute suggested that in the previous winter the fisheries sector had operated at a loss equivalent to 10 per cent of revenues, and that there would be an even greater loss unless corrective measures were adopted as a matter of urgency. The Institute also suggested that the budget deficit was approaching 5.5 per cent of GDP, as compared with 3.5 per cent of GDP in 1987, and with a small surplus in 1986.

&htab;134.&htab;In order to avoid further losses, and to ensure security of employment, the currency was devalued by 6 per cent at the end of February 1988. A continued deterioration in the operational position of the export industries and an increased current account deficit led to a further devaluation of 10 per cent on 16 May 1988.

&htab;135.&htab;In the midst of these difficulties, employers and the unions affiliated to the ASI were engaged in a major round of wage bargaining. By the end of March most of the major unions had reached agreements with the relevant employers or employer organisations. Most of these provided for immediate increases of between 10 and 14 per cent and further increases in June, September and December 1988 and in March 1989. By 20 May agreement had been reached in respect of all but 2 to 2.5 per cent of the workforce.

&htab;136.&htab;The Government states that over the period January-May 1988, it held several meetings with the social partners concerning the overall economic situation and negotiations on wages and salaries in particular. The Government refers especially to meetings with the ASI on 17 and 18 May. At the second of these, it transpired that the ASI was not prepared to take part in the defence of the wages policy which had been adopted by many of its constituent federations. Consequently, the Government did not engage in any further consultations with the complainant prior to the adoption of the Provisory Act.

&htab;137.&htab;According to the Government the legislation was necessary in order to reap the full benefits of the devaluation of 16 May and to create satisfactory operational conditions for the key sectors of the economy. These objectives were to be achieved by: (a) ensuring that wage increases conformed to the terms already agreed in the major employment sectors (which were, in turn, reflected in the percentages set out in article 1); (b) protecting the purchasing power of the low-paid; and (c) reducing the inflationary effects of the devaluation.

&htab;138.&htab;The Act of 20 May was subsequently amended by Provisory Acts of 31 May, 26 August and 28 September 1988. The last of these measures: (a) provided that normal collective bargaining could resume on 15 February 1989, rather than 10 April as originally envisaged; (b) froze the price of certain goods and services until 1 March 1989; and (c) stipulated that the 2.5 per cent increase which was due to be paid from 1 September 1988 should not be implemented during the life-time of the Act.

&htab;139.&htab;The Government states that the price-freeze succeeded in reducing inflation to 1 per cent in the period August-October 1988 (as against a forecast of 4 per cent).

&htab;140.&htab;The Government strenuously denies the suggestion that the Act of 20 May 1988 is incompatible with the principles of freedom of association.

&htab;141.&htab;According to the Government the Act in no way interfered with the rights of workers' and employers' organisations to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes as set out in Article 3 of Convention No. 87. Similarly, the Act cannot be regarded as incompatible with either Article 3 or Article 4 of Convention No. 98. The Act in no way interferes with the right to organise as defined in Article 2 of the Convention, and cannot, therefore, be regarded as contrary to Article 3. As to Article 4, each State is empowered to decide what measures are to be adopted in order to encourage and promote independent agreements between the social partners. There had been full discussion with the unions prior to the introduction of the Act of 20 May and consequently there could be no question of an infringement of Article 4.

&htab;142.&htab;The Government also points out that Article 73 of the Constitution of Iceland protects the right to form societies for any lawful purpose without previous authorisation. If the ASI truly felt that the Act of 20 May constituted an unwarranted interference with freedom of association they should have brought the matter before the courts in Iceland. They had not done so because, according to the Government, "the ASI considered that there was no hope of such an action being won".

&htab;143.&htab;The preliminary work for the adoption of Convention No. 87 clearly indicates that "one of the main objects of the guarantee of freedom of association is to enable employers and workers to combine to form organisations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements" [ Freedom of Association and Industrial Relations , Report VII, International Labour Conference, 30th Session, Geneva, 1947, p. 52.]. This strongly suggests that Article 3 of Convention No. 87 is intended to protect , inter alia, the right to engage in free collective bargaining. This view is clearly reflected in the jurisprudence of the Committee [ Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body , 3rd edition, 1985, paragraph 583]:

The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers' and employers' organisations should have the right to organise their activities and to formulate their programmes. Article 4 of Convention No. 98, meanwhile, can properly be seen to be concerned with the promotion of free collective bargaining.

&htab;144.&htab;The Act of 20 May 1988 clearly restricted the right of employees and worker organisations to engage in free collective bargaining during the term of the legislation. Article 4 of the Act extended the operation of all current agreements on wages and terms to 10 April 1989 (subsequently reduced to 15 February 1989), and prohibited "lock-outs, strikes, including sympathy stoppages of work or other acts intended to force an alternative order of wages and terms affairs to that stipulated in the present Act". Furthermore, article 5 forbade employers from raising "wages, remuneration and any kind of payments in kind in excess of that which has been negotiated in agreements on wages and terms and stipulated in the present Act".

&htab;145.&htab;There is, therefore, a prima facie inconsistency between the provisions of the Act of 20 May 1988 and the principles of freedom of association. However, the matter does not necessarily end there.

&htab;146.&htab;Both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations have recognised that some restrictions upon the freedom of the participants in the bargaining process may be warranted for compelling reasons of national economic interest [see Digest , op. cit., paragraph 639 and the General Survey by the Committee of Experts on Freedom of Association and Collective Bargaining , 1983, paragraph 315]. Any such restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards [ Digest , op. cit., paragraph 641, and General Survey , ibid.].

&htab;147.&htab;The Government has adduced evidence which suggests that in early 1988 Iceland was confronted with a number of serious economic problems. The Government clearly felt that it needed to take drastic action in order to prevent the situation from deteriorating further. It claims to have engaged in extensive consultation with the social partners and to have been prepared to engage in further consultation but was thwarted by the attitude of the ASI. The ASI contests this latter proposition, but does not deny that the Government was indeed confronted with a serious economic situation at that time.

&htab;148.&htab;The complainant points out that there has been general legislative intervention in the bargaining process on no less than nine occasions in the last ten years. On the other hand, five of the measures cited by the ASI were introduced in a 15-month period in 1978-79, and there was no intervention between the expiry of Act No. 58 of 1983 (partly on 31 January 1984 and partly on 1 June 1985) and the introduction of Act No. 14 of 1988. The Committee also notes that according to the complainant there has been an unspecified number of legislative interventions of a purely local character. Taken together, these figures certainly lend substance to the suggestion that there may be too-ready recourse to legislative intervention in the bargaining process in Iceland.

&htab;149.&htab;On the other hand, the Committee notes that the legislation was originally intended to remain operative for only 11 months (subsequently reduced), that the levels of wage increase in article 1 of the Act conformed very closely to the standard which had already been set by means of voluntary bargaining, and that the legislation appears to have made a serious attempt to control prices and (some) interest rates.

&htab;150.&htab;The Committee nevertheless endorses the complainant's view that the repeated use of legislation to amend existing collective agreements, or to control the content of future agreements, serves to undermine wage earners' belief in the value of trade union membership. Members or potential members may feel that there would be little point in supporting or joining an organisation the principal purpose of which is to represent its members in collective negotiations with employers, if the outcomes of these negotiations are repeatedly set aside by legislative decree.

&htab;151.&htab;The Committee is not competent to determine whether the complainant might or might not successfully have challenged the validity of the Act of 20 May 1988 by reference to Article 73 of the Icelandic Constitution. It would point out, however, that it has always taken the view that although it may take account of whether a complainant has exhausted internal legal procedures, its competence to examine allegations is not subject to the exhaustion of national procedures [ Digest , op. cit., paragraphs 31-33].

&htab;152.&htab;The issues raised in this case clearly bear upon the manner in which Iceland gives effect to its obligations under Conventions Nos. 87 and 98. It is appropriate, therefore, that the Committee's report be drawn to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;153.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes that the Act of 20 May 1988 restricted the right of employers' and workers' organisations to engage in free collective bargaining. It also notes with concern that this was the ninth instance of such intervention in ten years (the last being in 1983). Nevertheless, the Committee considers that on balance the restrictions imposed were warranted by reasons of compelling national interest, were imposed only to the extent necessary, operated only for a reasonable period, and were accompanied by adequate safeguards to protect workers' living standards. (b) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to its report in this case.

&htab;154.&htab;The pending complaints in the present case were presented in November 1986 and in June and July 1987. Despite the numerous requests addressed to it by the Committee, the Government had provided no comments on the issues raised. Consequently, the Committee, after having noted that the observations requested on a number of occasions had not been received and after having addressed an urgent appeal to the Government to transmit its observations, drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, it would present a report at its next meeting on the substance of this case, even if the observations requested from the Government had not been received in time.

&htab;155.&htab;At its March 1988 meeting, in the absence of any reply from the Government, the Committee was called upon to examine this case and presented an interim report on the substance of the matter to the Governing Body (see the Committee's 254th Report, approved by the Governing Body in March 1988).

&htab;156.&htab;Moreover, in accordance with a decision of the Committee, its Chairman, Mr. Roberto Ago, met Haiti's Government delegation during the 1988 International Labour Conference. During this meeting it was decided that the mission examining the implementation of the recommendations made in 1983 by the Commission of Inquiry regarding Haitian workers on the sugar plantations of the Dominican Republic would also discuss questions raised by the present case. This mission arrived in Haiti in October 1988, and the Committee proposes to examine the case in light of the information compiled by it on the spot.

&htab;157.&htab;Haiti has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;158.&htab;The allegations made in the present case essentially concern anti-trade union reprisals by employers against workers who were seeking to carry out legitimate trade union activities, the arrests of trade union leaders and activists specifically named by the complainant following a two-day strike in 1987, the dissolution by administrative decision of the Autonomous Confederation of Haitian Workers (CATH), notwithstanding the subsequent revocation of this dissolution, the violent occupation of the CATH's premises and the confiscation of trade union assets belonging to it. In the absence of any denial of these allegations by the Government, the Committee was at the time obliged to conclude that a serious violation of the principles of freedom of association had occurred.

&htab;159.&htab;In March 1988, the Governing Body upon the recommendation of the Committee, after having deplored the lack of co-operation from the Government in this affair, requested it:

- to ensure that the material and money of the Autonomous Confederation of Haitian Workers, which were confiscated during the attack on the headquarters of the Confederation on 22 June 1987 (a car, office equipment and a sum of money), be returned to the CATH; - to take severe measures to eliminate the danger involved in trade union activities, the arrest of trade unionists following strikes, and the ill-treatment and other punitive measures reportedly inflicted on them, and to indicate whether judicial inquiries had been instigated into the ill-treatment inflicted on the imprisoned trade unionists;

- to endeavour to bring about the reinstatement of the many workers dismissed for having wanted to conduct legitimate trade union activities, including the creation of trade union organisations within their enterprises.

&htab;160.&htab;The mission met trade union representatives concerned with this case in Haiti. They noted that many of the assets taken by the armed forces after the attack on the CATH's premises on 22 June 1987 were not returned. This included a photocopying machine, three typewriters, three motorcycles, 1,800 dollars and the organisation's records. Some equipment was returned, but it was completely broken and unusable.

&htab;161.&htab;According to the trade union representatives, the workers dismissed for wanting to carry out legitimate trade union activities have not been reinstated, and eight CATH activists who suffered ill-treatment when arrested on 22 June 1987 are still ill and depend on the CATH for the payment of their medical care. No judicial inquiries have been instigated regarding the allegations of ill-treatment.

&htab;162.&htab;The trade union representatives went on to allege that freedom of association in the country is only a facade, that no standard guaranteeing freedom of association is respected, that employers do not respect freedom of association and are condoned in doing so by the authorities and that workers are still dismissed for trade union activities. The trade union representatives also generally denounced the corruption which is rampant among inspectors and in labour courts, noting that some cases have been pending since 1986 without the workers concerned receiving any salary, allowance or pension, that peasants' federations affiliated to the CATH have been waiting for two years to be registered, and that two trade union premises have been destroyed by fire.

&htab;163.&htab;The government authorities refuted these allegations, stating that all the confiscated assets had been returned to the CATH and that, as to the rest, the allegations could not be substantiated. However, the government authorities gave assurances that the reimbursement of the medical costs incurred by the union activists who had suffered ill-treatment could be reconsidered.

&htab;164.&htab;Regarding the reinstatement of dismissed trade unionists, the government authorities emphasised that this is a matter for the labour courts to decide but they admitted that there was a difficulty here in so far as the courts impose only the payment of damages or fines and not the reinstatement of workers in their jobs. The authorities did not deny that there had been no judicial inquiry into the soldiers' behaviour to which the CATH was subjected on 22 June 1987.

&htab;165.&htab;During the on-the-spot mission, draft amendments to laws and regulations were drafted with the government authorities in order to bring the provisions of national legislation into conformity with Conventions Nos. 87 and 98, and the Government pledged that it would hold a national seminar on international labour standards in Haiti during 1989.

&htab;166.&htab;Until now the Committee has had to deplore the Government's serious default in its obligation to co-operate in the procedure. The Committee can only welcome the fact that the mission which went to Haiti was free to meet with the complainant national organisation as well as the government authorities, and was able to note that some developments in the field of freedom of association have taken place in the country.

&htab;167.&htab;On the substance of the issues still pending, the Committee notes the information and observations submitted by the complainants as well as those of the Government. While observing in particular that, according to the complainants, freedom of association is still far from respected in practice, the Committee none the less notes several positive factors that point to an appreciable improvement in the trade union situation; for example, the dissolution of the CATH has been revoked, the detained trade unionists have been released and some of the assets confiscated from the CATH have been returned, albeit not always in good condition.

&htab;168.&htab;As to the facts of the matter, the Committee notes with concern that trade union activists suffered ill-treatment during the events of June 1987 and are still receiving medical care, and that this is a charge on the CATH. Considering the Government's assurance to the mission that the reimbursement of the medical costs incurred by the union activists who suffered ill-treatment during these events could be reconsidered, the Committee urges the Government to keep it informed on this point.

&htab;169.&htab;As regards the reinstatement of workers dismissed for trade union activities, the Committee, while noting the Government's statement that this is a matter for the labour courts, can only firmly reiterate its previous conclusions, to wit, that one of the fundamental principles of freedom of association is that workers should benefit from adequate protection against all acts of discrimination liable to undermine freedom of association in employment, and that this protection is particularly desirable in the case of the founders of trade union organisations, since in order to carry out their functions they must have a guarantee that they will not suffer on account of the union office they stand for or hold.

&htab;170.&htab;The Committee therefore again calls on the Government to endeavour to obtain the reinstatement of the workers dismissed for having attempted to found a trade union organisation, and urges the Government to keep it informed of any progress in this respect.

&htab;171.&htab;As regards the legislative aspect of the case, the Committee notes that during the mission, draft amendments to laws and regulations were drafted in light of the comments of the Committee of Experts in order to bring the legislation into conformity with the ratified Conventions. The Committee hopes that the occupational organisations and the ILO will be consulted before the adoption of the above-mentioned draft and trusts that provisions in conformity with Conventions Nos. 87 and 98 will be quickly adopted.

&htab;172.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes that, contrary to what has occurred in the past, the Government has co-operated in the procedure by accepting the visit of an ILO mission, which was able to note some developments with respect to freedom of association in the country, such as the revocation of the dissolution of the CATH, the release of the detained trade unionists and the return of some of the assets confiscated from the CATH.

(b) However, the Committee notes with concern that trade union activists were ill-treated during the events of June 1987 and are still receiving medical care, and that this is a charge on the CATH. The Committee, noting that the Government's assurances to the mission that the reimbursement of these medical costs could be reconsidered, urges the Government to keep it informed on this point.

(c) As regards the workers who were dismissed for trade union activities, the Committee also notes with regret that the Government merely stated that this is a matter for the labour courts. The Committee again calls on the Government, in accordance with its international commitments by virtue of Article 1 of Convention No. 98 ratified by it, to take steps to ensure that workers are protected against acts of anti-trade union discrimination. (d) The Committee therefore requests the Government to endeavour to obtain the reinstatement of the workers dismissed for having attempted to found a trade union organisation, and urges the Government to keep it informed of any progress in this respect.

(e) The Committee trusts that legislation in conformity with Conventions Nos. 87 and 98 will be quickly adopted in consultation with the occupational organisations and with the ILO and draws the attention of the Committee of Experts to this aspect of this case.

&htab;173.&htab;In communications of 15 and 28 September 1987, the Centre of Indian Trade Unions (CITU) presented allegations of violations of trade union rights against the Government of India. It supplied further information in a letter of 23 October 1987. The Government sent its observations on the case in letters dated 11 February, 19 May, 12 and 15 September, 14 and 31 October and 2 November 1988.

&htab;174.&htab;India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has ratified the Rural Workers' Organisations Convention, 1975 (No. 141).

&htab;175.&htab;In its letters of 15 and 28 September 1987, the CITU alleges the murder of and physical attacks on CITU activists in Assam Province by the police and management-backed hired gangsters. The complainant supplies copies of memoranda on these allegations it submitted to the Home Minister of Assam on 29 August 1987, to the Director-General of the Province's police on 27 August 1987 and to the Central Government's Ministers of Home Affairs and Labour on 1 September 1987, all of which have gone unanswered.

&htab;176.&htab;The CITU claims that these attacks are not isolated incidents or criminal assaults by some anti-social elements but are deliberately planned to coerce workers to leave the CITU and its affiliate unions and join the pro-management unions. It explains that the CITU, which has organised workers in the tea and plywood estates of Assam, was having collective bargaining problems and this led to a state-wide strike by plywood workers on 12 August 1987.

&htab;177.&htab;It was against this background that the following incidents allegedly occurred:

- on 18.6.87, Mahilal Kalindi, a tea estate worker from Cachar and activist in the CITU affiliate, was arrested by the police, refused contact with his family, and his dead body was recovered from a nearby river two days later;

- on 2.7.87, Ashit Dutta, Secretary of the Assam State Committee of the CITU, was illegally detained for several hours and beaten by police;

- on 28.7.87, nine tea estate workers from Darrang District who had recently joined the CITU were arrested and beaten by the police until they agreed to leave the union; they were dismissed without notice by the management three days later;

- on 13.8.87, Sukhram Tanti, another tea worker from Darrang District, was arrested and beaten by police until he agreed to sever all connections with the CITU;

- on 14.8.87, the manager refused permission for the CITU to hold a meeting at the Bhutiachang Tea Estate scheduled for the next day;

- on 17.8.87, Uttam Das, General Secretary of the local plywood and sawmill union, was attacked by thugs and illegally detained by the police; three days later his union's offices were ransacked by these thugs;

- on 20.8.87, eight CITU activists were arrested and beaten by the Panery police until they undertook to renounce the union.

&htab;178.&htab;The CITU also supplies a report prepared by Mr. Ashit Dutta (referred to above) describing the violent interruption of his local union's meeting at the Choibari Labour Club House on 3 September 1987. According to the document, armed boys attacked Mr. Umesh Das, Joint Secretary of the Choibari Tea Garden Union Committee, and stole union property (a key and radio) to hand over to the Assistant Manager. The following day, the workers complained of this violence by demonstrating in front of the tea garden manager's office and, after the union's intervention, the manager lodged a complaint with the Chapar Police Station concerning the incident. However, it appears that the thugs responsible for the violent attack on the local unionists were released on bail on 8 September and are at large, intimidating the CITU affiliate's members with openly visible lethal weapons.

&htab;179.&htab;In its communication of 23 October 1987, the CITU describes the violent interruption of a peaceful demonstration of CITU workers at the Bijoypur Tea Estate on 12 October 1987 when the Assam State Police opened fire, killing one worker and injuring several others. After the shooting the police allegedly entered the workers' houses and physically assaulted their families. This incident was reported by the Assam State Committee of the CITU to the State Minister of Home Affairs on 16 October, but no action resulted from this intervention.

&htab;180.&htab;In its letter of 11 February 1988, the Government states that information from the state Government of Assam indicates that a preliminary inquiry into the allegations was conducted. On the basis of the preliminary findings, a high-level inquiry has been ordered by the state Government, to be conducted by a senior police officer holding the rank of Deputy Inspector General of Police. His full report was expected within one month and would be transmitted to the Committee once available. The state Government gave the assurance that bona fide trade union activities would not be hampered in any way and that there would be no hindrance of the right of workers to form and join organisations of their own choice as provided by the law. The relevant district administration in the state of Assam has been instructed to maintain the necessary vigilance.

&htab;181.&htab;In its communication of 19 May 1988, the Government supplies information on the high-level police inquiry which has been completed as regards two of the six complaints, namely (i) the beating of Mr. Ashit Dutta, Secretary of the CITU Assam State Committee, and (ii) the assault on Mr. Umesh Das, Joint Secretary of the Choibari Tea Garden Union Committee.

&htab;182.&htab;As regards Mr. Dutta's case, the inquiry revealed that, on 2 July 1987, Kokrajhar township was submerged under floodwaters and some local boys started digging a culvert on the road to let the floodwater pass. In the process they damaged the road and a police party reached the spot and tried to prevent further breach of the road. An altercation followed and the police party was assaulted. Consequently, arrests were made by the police. According to Mr. Dutta's version, he was at his house at the time of the assault on the police and he was beaten and locked up when he went to the police station regarding bail for the arrested persons. But the police version is that he was present at the time of the incident and was arrested when he visited the police station. Later on he was released on bail. During the inquiry it could not be proved that Mr. Dutta was assaulted at the police station. Furthermore, according to the inquiry, "as the case is presently sub judice in court it would not be advisable to give any opinion regarding the legality of the arrest of Mr. Dutta by the police". Mr. Dutta is a known trade unionist and enjoys some status and responsibility; it is possible that he might have intervened on behalf of the boys of his locality. As to the question whether the arrest and alleged beating of Mr. Dutta had anything to do with his trade union activities, nothing came to light during the inquiry to corroborate this view. There was no trade union unrest at the time of his arrest nor had he had poor relations with the police because of his trade union activities prior to his arrest. The police action against him does not appear to have been aimed at causing harassment to him as a trade union leader. In a subsequent communication dated 14 October 1988, the Government states that Mr. Ashit Dutta is charged with assaulting a police driver when the police intervened on 2 July 1987 and restrained him from cutting the road. A case against him and five others has been registered under sections 147, 341, 353, 307 of the Indian Penal Code and a charge sheet No. 163 dated 2 December 1987 against these six persons is presently awaiting decision in the Court.

&htab;183.&htab;As regards Mr. Umesh Das's case, the inquiry revealed that Mr. Umesh Das took a leading part in organising a strike on 3 September 1987. He was, however, listed as being on casual leave, so received his pay for that day unlike the other labourers. One labourer, Sundarsai Lohar, and 12 others protested against this, went to his residence and threatened him. They assaulted Mr. Ismail Hambram, another active member of the union, and forcibly held a meeting in the union club demanding action against Mr. Umesh Das. Thereafter they took the key and radio of the club and went to the house of Mr. S. Chakraborty, Assistant Manager, to hand the property over to him. But, sensing trouble, he refused to accept. When Mr. Umesh Das's union filed a complaint, the accused persons were arrested on 9 September 1987; after 15 or so days, a compromise was reached among the rival labour groups and since then there has been no further trouble in the tea garden. There is nothing to show that the bona fide trade union activities of the tea garden labourers were hampered nor that unionised workers were hindered in their basic rights under the law. According to the inquiry, the issue is one of rivalry among labourers and neither the garden management nor the police were involved in the incident. The labour leaders in the tea garden have taken steps to reach a compromise on the pay-cut issue and requested the Chapar Police Station not to proceed further with the case against the above-mentioned Lohar and party. The case has accordingly been dropped.

&htab;184.&htab;In its communication of 12 September 1988, the Government supplies the following findings of the Deputy Inspector General's inquiry report relating to the police firing on CITU workers at the Bijoypur Tea Estate. On 12 October 1987 Mr. Samudra Ree, a worker belonging to the INTUC Union complained to the police station of an assault by six workers belonging to the CITU. The complaint was registered by the police station and the worker was hospitalised for two days for his injuries. The Commanding Officer of the police station went to search for the accused persons on the same day. Since it was a public holiday, the police party went to the housing area and found one of the accused in a drunken state. Meanwhile the President of the tea garden branch union of the CITU arrived accompanied by certain other labourers and asked the Commanding Officer to leave the garden giving the assurance to produce the accused persons at the police station the next day. So as to avoid an ugly situation, the Commanding Officer left without arresting any person. Since the complaint to the police had been lodged by a worker belonging to INTUC, the CITU affiliate construed it as an act of conspiracy between management and the police in order to put CITU workers in difficulty. They informed the developments to their union leaders at Rampur Tea Estate.

&htab;185.&htab;According to the report, the next day at 7.00 a.m., workers of Rampur Tea Estate confronted the manager of the garden, Mr. R.S. Rajawat, and alleged that the police had been involved in a conspiracy against the CITU affiliated union, and that the complaint was a false one. The manager denied the charge and promised to look into the matter. He reached the garden at 8.00 a.m. and was met by about ten local union leaders who demanded the dismissal of the worker who had lodged the complaint and brought the police to the garden. Meanwhile 100 to 150 labourers of the garden collected in front of the office demanding action and were joined by about 200 labourers from the Rampur Tea Estate. The manager asked them to return to their work but they were adamant and surrounded him. The manager telephoned the manager of the Daloo Tea Estate and requested him to inform the police station about the developments; he also sent his security guard to the police station for help, but the workers blocked him. They also disconnected the telephone.

&htab;186.&htab;When the deputy manager of Daloo Tea Estate informed the police station at 11.00 a.m. about the events, the Commanding Officer immediately sent a message to the Superintendent of Police at Silchar apprising him of the situation, requesting reinforcements and a magistrate to come to the garden to take charge of law and order. When the Commanding Officer arrived at the garden, he found about 400 to 500 workers surrounding the garden manager and his staff. The labourers prevented the Commanding Officer from entering the garden, but he managed to enter through a side fence. Despite his appeal to cease the actions, the labourers refused to do so. Meanwhile reinforcements and a magistrate were sent to the estate. The magistrate's efforts to pacify the workers failed and the labourers became more agitated when they saw the police reinforcements which arrived at 2.10 p.m. When the magistrate tried to evacuate the manager in his own jeep the labourers intercepted and damaged the vehicle by stone pelting. To control the situation tear gas shells were burst but these did not help, nor did the cane charge. Firing was then ordered and 28 rounds were fired which resulted in the death of one labourer, and the other labourers dispersed on seeing the dead body. In all, 16 police were injured as was the magistrate. One labourer was killed and the garden office badly damaged.

&htab;187.&htab;According to the report, the inquiry did not reveal that there was any deliberate attempt by the police to curb the trade union rights enjoyed by the garden workers. Although the police visited the garden on 12 October 1987 to investigate the complaint, none of the named accused were arrested by the police who left the garden on the assurance of certain unionists to produce the accused persons at the police station the next day. However, the organised behaviour of the garden labourers the next day proves that the information about the police visit was circulated the same night among the labourers and the union leaders. The surrounding of the manager was an illegal act. The inquiry report states that the action of the police in visiting the garden in connection with the investigation of the complaint could appear to be over-zealous. The police might have visited the garden after taking into confidence the CITU affiliate as the complaint was by a labourer belonging to a rival union. There was, however, nothing illegal in the police action in visiting the tea garden. Similarly, the police visited the tea garden next day in connection with the complaint of unlawful treatment of the manager. There was nothing improper or illegal in this action. The Commanding Officer of the police station was also justified in seeking reinforcements and asking for a magistrate to remain in charge of law and order. The orders to disperse the violent labourers were issued according to the lawful decision of the magistrate. According to the Government, there was no wanton police action against the labourers because 28 rounds were fired by the police and one labourer was killed. This shows that the police fired mostly in the air or in different directions in order to scare away the labourers. Various factors combined to make the situation serious but during the inquiry the allegation of a deliberate police attempt to curb the genuine trade union rights of CITU affiliated labourers of Bijoypur Tea Estate could not be corroborated.

&htab;188.&htab;In its letter of 15 September 1988, the Government notes that the allegation that Mr. Maina Kalandi was arrested by the police on 18 June 1987 and that his dead body was recovered from the river on 20 June 1987 contains the subtle insinuation of his torture and subsequent death while in police custody. However, according to the Government, inquiries conducted into the alleged torture and death in police custody based on the evidence on record and statements of other witnesses did not corroborate any such thing.

&htab;189.&htab;The main findings of the inquiry are summarised as follows: on the night of 18 June 1987, Mr. Jayram Mal lodged a complaint at the police station alleging that Maina Kalandi had visited his house the previous night and assaulted his parents with a lethal weapon. After the incident Mr. Maina Kalandi set his own house on fire. There were witnesses to this incident. The police arrested Mr. Maina Kalandi that very evening and brought him to the police station. He was kept there for interrogation that night and was released on bond the next morning at about 10 a.m. After leaving the police station he went to a tea shop in Borkhola bazaar and had tea there; upon leaving he suddenly started running towards the Jatinga river, located a short distance away, and jumped into it. Several passers-by and shopkeepers witnessed him running away in a frenzy and a few of them saw him jumping into the river. It was only on 20 June 1987 that his dead body could be recovered from the river by the police. The body was sent for a post mortem examination and the medical report found it to be a case of death due to asphyxia as a result of ante mortem drowning. No external injury was found on the dead body during post mortem examination. The statements of three witnesses testifying that the deceased ran towards the river and jumped into it was also recorded by the magistrate of Silchar.

&htab;190.&htab;The inquiry has established that there was nothing illegal in the arrest of the accused, Mr. Maina Kalandi, by the police on the complaint received from Mr. Jayram Mal. The accused was released on bond from the police station on the very next day after his arrest. There was no trade union rivalry in the above case, which took place between two individuals, in their individual capacity and not as trade union members. It was merely a matter of a crime and hence it did not at all appear to be a case of undue interference by the police in the genuine trade union activities of CITU members.

&htab;191.&htab;In two further communications of 31 October and 2 November 1988, the Government encloses the findings of the Deputy Inspector General's inquiry into the alleged arrest and assault of Mr. Uttam Das, Joint Secretary of the Plywood and Saw Mill Mazdoor Union. It states that there was an incident on 17 August 1987 concerning the collection of relief money in which Mr. Uttam Das sustained injuries, described in the medical report as simple in nature. A case was nevertheless submitted to the court against both the parties to prevent them from causing any further breach of peace. Since there was no more problem between the parties, the matter was dropped. On 20 July 1987, there had been an incident resulting from trade union rivalry between two groups in which a complaint was lodged against Mr. Uttam Das. As a result of the complaint he was arrested, briefly detained by the police at the Mariani police station and released on bail the same day. As regards the alleged interference by certain elements in the CITU local office, the inquiry found that on 20 August 1987, the caretaker of the local office was threatened and asked to vacate the premises; a complaint was immediately registered with the Mariani police, but as the offence was non-cognizable, no arrest could be made by the police.

&htab;192.&htab;Finally, in the communication of 31 October 1988, the Government supplies the inquiry's findings into the alleged problems at the Bhutiachang Tea Estate. As regards the alleged arrest by the Panery police and beating of nine workers with a view to forcing them to leave the CITU affiliated union, the inquiry found that most of the 986 permanent labourers employed on the estate were members of the ACMS union. Subsequently, the CITU took over and claimed membership of 700 labourers, thus causing hostility between the two unions. On 28 July 1987, an office bearer of the ACMS Union, along with a few other activists, went to the tea garden to inquire about the membership drive launched by the rival union; this led to an altercation and the assault of the ACMS official who sustained grievous injuries. A complaint was lodged with the Panery police station and the police visited the tea estate for an on-the-spot inquiry, following which they arrested eight labourers for assault. These eight labourers have been charged and the case is sub judice . The allegation of beating of these workers at the police station could not be corroborated. Likewise, states the Government, the alleged beating of Sukhram Tanti by the Panery police could not be substantiated during the inquiry. The Government stresses that the police did not interfere with the trade union rights of the tea garden labourers in these cases and that there was no illegal detention of accused persons. They were remanded in custody at the first opportune moment (29 July 1987) according to the law. The inquiry also revealed that the Bhutiachang tea garden management appeared biased in favour of the ACMS union and seemed to be victimising some of the CITU workers.

&htab;193.&htab;This case concerns serious allegations of management-incited police and thug repression of members of the complainant union and its affiliates in Assam tea and plywood estates in late 1987. The repression allegedly includes: (1) murder of Mr. Mahilal Kalindi on 18 June 1987; (2) beatings while in police custody of Ashit Dutta, Sukhram Tanti and another nine unnamed tea estate workers from the same Darrang District and eight unnamed unionists from Panery District; (3) illegal detention of Mr. Uttam Das on 17 August 1987; (4) interruption of union meetings on 3 September 1987 in Choibari (including assault of Mr. Umesh Das) and on 12 October 1987 at the Bijoypur Tea Estate, and refusal to allow a union meeting at the Bhutiachang Tea Estate.

&htab;194.&htab;The Committee notes that the Government set up a high-level police inquiry into the allegations. It points out, especially in view of the alleged collusion in the present case of the state police in the anti-union violence, that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry by the government concerned is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions [see Digest of Decisions and Principles , 1985, para. 78].

&htab;195.&htab;As regards the inquiry's findings in the Maina Kalandi death, the Committee notes that the deceased was released from police custody on bond the morning following his detention for questioning in connection with assault charges. In particular, it notes that witnesses testified to his suicidal behaviour in jumping into the river and that the official post mortem reported "death due to asphyxia as a result of drowning". In these circumstances, the Committee considers that this aspect of the case does not call for further examination.

&htab;196.&htab;As regards the inquiry's findings in the Ashit Dutta case, the Committee notes that a criminal case against him is presently before the courts. It also notes that, according to the inquiry, a link between his arrest and his trade union activities was not proven nor that he suffered ill-treatment while in police detention. The Committee requests the Government to supply information on the outcome of the case against Mr. Dutta for assaulting a police driver, as well as a copy of the court judgement to be handed down. In the case of this CITU leader and for all the other cases of alleged police beating while in detention (including that of Mr. Sukhram Tanti and eight other labourers from the Bhutiachang Tea Estate), the Committee requests the Government to supply information on the current trials concerning them and recalls that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found so as to ensure that no detainee is subjected to such treatment [see Digest , paras. 83 and 84].

&htab;197.&htab;As regards the alleged illegal detention of Mr. Uttam Das on 17 August 1987, the Committee notes that, according to the inquiry, there had been an incident involving injuries to Mr. Uttam Das on that day but no detentions, arrests or follow-up took place. The Government explains that he had been briefly held one month before the alleged date, on 20 July 1987, by the Mariani police in connection with an incident of trade union rivalry but had been released on bail that same day. In situations such as this, where the Committee is faced with directly conflicting statements without evidence being adduced to shed light on the complainant's general allegation, the Committee finds itself unable to give an opinion on the incident.

&htab;198.&htab;As for the inquiry's findings in Mr. Umesh Das's case, the Committee notes that the union meeting of 3 September 1987 and demonstration the following day were linked to jealousies between two factions and that since then a settlement has been reached involving the dropping of charges against those labourers who had threatened Mr. Umesh Das and assaulted another union activist, Mr. Ismail Hambram. The Committee observes that the inquiry stresses that there has been no further trouble in that tea garden, whereas the complainant alleges that the individuals responsible for the incident are at liberty to intimidate pro-CITU workers on the estate. Since the complainant gives no further details to support its general allegation and since it appears that the forces of law and order in this case acted promptly on a complaint to apprehend individuals accused of anti-union violence, the Committee considers that this aspect of the case calls for no further examination.

&htab;199.&htab;As regards the inquiry's findings on the 12 October 1987 union meeting at the Bijoypur Tea Estate, the Committee notes that this was not, as alleged, a peaceful demonstration related to occupational demands, but a violent incident based on inter-union rivalry. Although the tea garden workers used violence and threats, the Committee must express its concern that it has been found officially that police gunfire killed one of the demonstrating workers. While agreeing that self-defence is not wanton action, the Committee must stress that the firing of live ammunition on unarmed workers by the forces of order is a particularly serious act which - if proven to be an offence - should be subject to all appropriate measures so as to prevent the repetition of such actions [see Digest of Decisions , para. 80].

&htab;200.&htab;As regards the allegations concerning the Bhutiachang Tea Estate management, the Committee notes that, according to the inquiry, clashes occurred in late July 1987 when rival union leaders met such that police intervention was necessitated. While not replying specifically to the alleged refusal of the management to allow a CITU meeting scheduled for 15 August 1987, the Government gives a great deal of detail concerning the tension existing at that tea garden and admits that the management appeared to be biased in favour of one union and to victimise some of the CITU-affiliated workers. In similar past cases the Committee has firmly recalled the principle that, while it has no competence to examine the merits of disputes within the various tendencies of a trade union movement, a complaint against another organisation, if couched in sufficiently precise terms to be capable of examination on its merits, may bring the government of the country concerned into question - for example, if the acts of the organisation complained against are wrongfully supported by the government or are of a nature which the government is under a duty to prevent (e.g. by virtue of its having ratified an international labour Convention) [see 73rd Report, Case No. 322 (Sierra Leone), para. 11; 234th Report, Case No. 1226 (Canada), para. 60]. In particular, violence resulting from inter-union rivalry might constitute an attempt to impede the free exercise of trade union rights. If this were the case and if the acts in question were sufficiently serious, it appears that the intervention of the authorities, in particular the police, would be called for in order to provide adequate protection of these rights. The question of infringement of trade union rights by the Government would only arise to the extent that it may have acted improperly with regard to the alleged violence [see 109th Report, Case No. 533 (India), para. 116; 218th Report, Case No. 1129 (Nicaragua), para. 479].

&htab;201.&htab;In the present case, the Committee observes that India has ratified the Rural Workers' Organisations Convention, 1975 (No. 141) and has thus undertaken to ensure that "the principles of freedom of association shall be fully respected; rural workers' organisations shall be independent and voluntary in character and shall remain free from all interference, coercion or repression" [Article 3, paragraph 2, of the Convention]. The Committee accordingly requests the Government to take measures to ensure that there is no favouritism by the Bhutiachang Tea Estate management such as to interfere with the right of the tea garden workers to belong to and act with a workers' organisation of their own choosing.

&htab;202.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) While noting that the high-level police inquiry was set up to investigate the alleged incidents of anti-union violence on tea and plywood estates in Assam, the Committee requests the Government to supply information on: the outcome of the criminal case for assault brought against union leader Mr. Ashit Dutta; the case of the eight tea estate workers of the Panery district, and to send a copy of the court judgements to be handed down.

(b) The Committee draws the Government's attention generally to the position it has taken in past cases involving alleged beatings and anti-union violence by the law enforcement arm of government, namely that protection against ill-treatment should be afforded to detained trade unionists and that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found to ensure that such action does not recur.

(c) The Committee stresses that the firing of live ammunition on unarmed workers by the forces of order - which in this case led to the death of one worker during a demonstration - is a particularly serious act which, if proven to be an offence, should be subject to all appropriate measures so as to prevent the repetition of such actions.

(d) It requests the Government to take measures to ensure that there is no favouritism by the Bhutiachang Tea Estate management such as to interfere with the right of tea garden workers to belong to and act with a workers' organisation of their own choosing.

&htab;203.&htab;The United Mine Workers of America (UMWA) presented a complaint of violations of trade union rights against the Government of the United States in a communication dated 28 July 1988, and submitted additional information in support of its complaint by letter of 9 September 1988. The American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) and the Miners' International Federation (MIF) expressed their support of the UMWA's complaint in communications dated respectively 2 and 8 September 1988. The Government submitted its observations in a communication dated 26 October 1988.

&htab;204.&htab;The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;205.&htab;In its communication of 28 July 1988, the UMWA refers to the conduct of the Italian-based state holding company Ente Nazionale Idrocarburi (ENI) at its coal operations in the United States, run by one of its wholly-owned subsidiaries, Enoxy Coal Corporation ("Enoxy"). The present complaint relates to Enoxy's actions at its Pevler coalmining complex in Kentucky.

&htab;206.&htab;The UMWA's complaint can be summarised as follows. First, a general allegation that the enforcement procedures of US labour law are so slow and the penalties so weak that a company can violate the basic trade union rights of its employees with virtual impunity. Second, a series of specific allegations of unfair labour practices against Enoxy, namely: refusal to bargain in good faith; subcontracting of mining operations to non-union companies; anti-union discrimination against union leaders, including the dismissal of the union vice-president, in an attempt to weaken the union; hiring of armed security guards to harass and intimidate union members.

&htab;207.&htab;In support of its allegation that Enoxy refused to bargain in good faith with a view to renewing the 1984 collective agreement, the complainant alleges that although it had decided not to strike the Enoxy mines the company refused its offer to extend the 1984 agreement, hired a known union-busting law firm, refused overtures by international UMWA officers to meet unofficially, and terminated the final and binding stage of arbitration. In addition, Enoxy refused to continue its payments to the UMWA Pensions and Benefits Trusts, which refusal is presently the object of a lawsuit in the Columbia District Court. The complainant provides several affidavits and letters in support of its allegations in that respect.

&htab;208.&htab;As regards the subcontracting and leasing to non-union coal companies, the complainant alleges that Enoxy has had such a policy for a long time in an attempt to subvert the collective agreement. The UMWA refers in particular to the award issued in 1987 by an arbitrator, who ruled that the company had violated the collective agreement by leasing out its Pevler coal lands to non-union operators, and directed Enoxy to terminate said subcontracts. The complainant provides several letters and affidavits in support of this allegation.

&htab;209.&htab;Regarding the allegations of anti-union discrimination, the UMWA submits that Enoxy laid off the local union vice-president and a union committeeman in an attempt to weaken the union at the Pevler complex. The company offered to reinstate the above-mentioned vice-president if he agreed not to pursue another union member's grievance; he refused and was subsequently laid off. The complainant produces an affidavit in support of this allegation.

&htab;210.&htab;Finally, the UMWA complains about the paramilitary practices and tactics of the security firm hired by Enoxy in order to harass and intimidate union members. The UMWA alleges it has confirmed reports that the guards currently posted at the Pevler facility are heavily armed with automatic handguns and rifles, and have erected "bunkers" at the entrance of the mining complex. The complainant files numerous documents, brochures, press clippings, photographs, etc. in support of this allegation.

&htab;211.&htab;In its communication of 26 October 1988, the Government summarises the events leading to the filing of the grievance against subcontracting. In October 1984, Enoxy shut down its mining operations at the Pevler complex and laid off all bargaining unit employees of the UMWA. In the summer of 1986, Enoxy entered into licensing agreements for the mining of coal at the Pevler complex with three non-union coal operators, which were required to sell their entire production to Enoxy. Two of these operators (KTK and Highwire) started production in July 1986. In June and July 1986, union officials met with Enoxy representatives to discuss the independent operators' refusal to recognise the union as representative of their employees, who remained unrepresented by the union. In August 1986 union members protested the licensing out of coal operations, through informational picketing, but no grievance was filed at that time. The grievance, filed on 29 December 1986 pursuant to the collective agreement, was heard on 12 May 1987, by an arbitrator who had to decide three issues:

- was the grievance arbitrable in view of the emloyer's timeliness objection?

- did Enoxy violate the collective agreement by licensing out its coal operations at the Pevler complex?

- if so, what was the appropriate remedy?

&htab;212.&htab;In his decision rendered on 25 May 1987, the arbitrator held on the first issue that the grievance was timely since the licensing out constituted a continuing violation of the agreement, which subsisted in late December 1986 when the grievance was filed. On the merits, the arbitrator decided that the collective agreement "... bars an employer in Enoxy's position from leasing or licensing out its coal lands, when the purpose of that action is to avoid the application of the Agreement that would result if the particular leasing or licensing out arrangement were not entered into." The arbitrator concluded that a reasonable employer, in Enoxy's circumstances, would have been aware that its actions in licensing out certain coal lands to non-union operators would result in avoidance of the application of the Agreement. The arbitrator further stated that by using the licensing-out system, Enoxy was able to obtain coal mined from Pevler and still meet its contractual sales commitments without being bound by the wage rate, benefits pension contribution, seniority, safety and other terms of the Agreement. He ordered Enoxy to terminate its mining contracts with KTK and Highwire immediately and under no circumstances later than 1 July 1987.

&htab;213.&htab;On 26 June 1987, Enoxy appealed the arbitrator's decision to the United States District Court for the Eastern District of Kentucky. The case was assigned to a magistrate of the District Court, who reversed the arbitrator's finding that the violation was a continuing one, on the basis that there was no support for such a theory within the Agreement. He further concluded that the limitation provision in the Agreement was unambiguous and mandatory. The magistrate did not express his opinion on the merits of the grievance.

&htab;214.&htab;The union appealed the magistrate's recommendation to the District Court. Two judges to whom the case had been referred fell ill; a third judge of the US District Court, adopting, inter alia, the reasoning of the US Supreme Court with respect to the standard of arbitral review, upheld the magistrate's recommendation. The judge did not comment on the merits of the grievance. On 30 September 1988, the union appealed that decision to the US Court of Appeals, where it is currently pending.

&htab;215.&htab;The Government also states that Enoxy made several changes in its relationship with the union. Furthermore, without endorsing or criticising the position and allegations of either party, it contends that the laws of the United States generally comply with Conventions Nos. 87 and 98, and protect the freedom of association of union members.

&htab;216.&htab;As regards the allegations that the labour laws of the United States are too slow or the penalties too weak to be effective, the Government replies that its legislation establishes expeditious appeal procedures through the court system. It seems that the union is not unhappy with the length of time it took to obtain a decision, but rather with the decision itself; indeed, the union is now the appellant before the Court of Appeals. Furthermore, the penalties provided by the legislation are adequate; had the appellate Court affirmed the arbitrator's decision, it would have ordered Enoxy to terminate its subcontracts, i.e. the remedy desired by the union.

&htab;217.&htab;Concerning the alleged refusal to bargain in good faith, the Government submits that labour negotiations are voluntary, and that a party is not required to agree to a collective agreement if it finds its terms unacceptable. Sections 8(a)(5) and 8(b)(3) of the National Labor Relations Act (NLRA) provide that employers and unions must bargain in good faith. The union's recourse would have been to file a charge of unfair labour practice with the National Labor Relations Board (NLRB), but it apparently chose not to do so.

&htab;218.&htab;As regards the allegation that Enoxy discriminated against the union by subleasing its coal operations to non-union companies in order to subvert the collective agreement, the Government replies this kind of action also constitutes an unfair labour practice under sections 8(a)(3), 8(a)(5) and 8(d) of the NLRA. Here again, the union's recourse would have been to file a charge of unfair labour practice with the NLRB, which it did not. The union decided to proceed before the arbitrator, who ruled in its favour; however two appellate courts reversed the arbitrator's award because, in their opinion, the grievance was untimely. The case is now pending before the US Court of Appeals (Sixth Circuit), which may affirm or reverse the lower court's decision. These appellate procedures are fair and reasonable, and are available to both parties.

&htab;219.&htab;The Government further submits that the union had the same remedy with respect to its fourth and fifth allegations (unlawful lay-off of union officials, harassment and intimidation of union members), to wit, unfair labour practice charges filed with the NLRB, since such acts are specifically prohibited by sections 7, 8(a)(1), 8(a)(3) and 8(a)(4) of the NLRA. The union has not done so to date.

&htab;220.&htab;The Government concludes that the union's complaint fails to provide any specific information to support its contention that the United States labour laws are inadequate to safeguard the principles of freedom of association. The labour laws of the United States provide more than adequate procedures and remedies to correct the violations alleged in this case; it is only because of the particular circumstances of this case that these remedies were not granted to the union.

&htab;221.&htab;The Committee notes that this case raises two sets of allegations. First, the UMWA complains against various unfair labour practices by Enoxy, a subsidiary of Ente Nazionale Idrocarburi, at its Pevler mining complex in Kentucky. Secondly, the complainant argues that the National Labor Relations Act does not protect workers adequately against these violations of their fundamental trade union rights. For its part, the Government submits that its labour legislation and practices, both generally speaking and in the particular circumstances of this case, are in compliance with ILO Conventions Nos. 87 and 98. Furthermore the Government stresses that it does not endorse or criticise the positions and allegations of either party, but that its reply addresses the adequacy of United States laws to protect union members' freedom of association rights.

&htab;222.&htab;As pointed out in the Government's reply and as the Committee noted in the BASF case [256th Report, Case No. 1437, para. 234], the NLRA provides a series of procedural safeguards for the filing and hearing of unfair labour practice charges. The complainant unions in the BASF case, which involved similar allegations, did file such charges to the NLRB; on some issues the Board ruled in favour of the union, and on others it upheld the employer's position. This prompted the Committee to state that the very fact that the complainant's affiliates continued to use - and win with - the NLRB procedures indicated that the system was not entirely without the confidence of the workers' organisations involved [ibid., para. 234].

&htab;223.&htab;The major difference which distinguishes the present complaint from the BASF case is that, for some unexplained reason, the UMWA did not file unfair labour practice charges with the NLRB within the six months limit provided by the NLRA. Although the Committee's competence to examine allegations is not subject to the exhaustion of national procedures, it has considered that where national legislation provides for appeal procedures before the courts or independent tribunals, and these procedures have not been used for the matters on which the complaint is based, it should take this factor into account when examining the complaint [ Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO , 3rd ed., 1985, paras. 31 and 33]. Since one of the main allegations is that the remedies provided by the legislation are too slow and the penalties too weak to be effective, it might be noted that section 10(m) of the NLRA gives priority to unfair labour practice charges filed under section 8 over all other cases, except those of like character, and that section 10(c) of the same Act empowers the NLRB to issue cease and desist orders and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of the Act. In the absence of further evidence, the Committee considers that the statute in question establishes safeguards for the filing and hearing of unfair labour practice charges, which the complainant apparently chose not to pursue.

&htab;224.&htab;This being said, however, the Committee points out with concern that this is the fourth recent complaint lodged - by different complainants - against the United States on the grounds of anti-union tactics and unfair labour practices, in particular through abuse of the legislative provisions on recognition of collective bargaining agents and on procedures leading to conclusion of collective agreements. In the BASF case for instance [loc. cit., paras. 231 to 237, approved in May-June 1988], the Committee recalled 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 the grounds of union membership or activities.

&htab;225.&htab;The present case involves serious allegations, most of which are related to anti-union discrimination practices. The usual practice of the Committee has been not to make any distinction between allegations levelled against governments and those levelled against persons accused of infringing freedom of association, but to consider whether or not, in each particular case, a government has ensured within its territory the free exercise of trade union rights [ Digest , loc. cit., para. 25, and cases cited]. Furthermore, as mentioned by the Committee of Experts [ General Survey , ILO, 1983, paras. 256-280], experience shows that the existence of basic legal standards prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective procedures to ensure their application in practice. Complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner. As long as protection against anti-union discrimination is in fact ensured, methods adopted to safeguard workers against such practices may vary from one State to another; but if there is discrimination, the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used [ Digest , loc. cit., paras. 570-571].

&htab;226.&htab;Coming back to the specific allegations of unfair labour practices made here, the Committee considers that a number of actions by Enoxy, taken as a whole and in their general context, certainly cannot be said to be conducive to good industrial relations. The complainant submits - and the Government acknowledges - that Enoxy made several changes in its relationship with the union by: refusing to extend the Agreement's 28 January 1988 expiration date to a later date when a new contract could be negotiated; refusing to make payments to the union's 1950 and 1974 Pension Trusts and to the 1950 and 1974 Benefits Trusts; and licensing out its Pevler coal operations. In view of these circumstances, and while recognising that the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties within the law of the land, the Committee recalls the importance it attaches to the principle that employers and trade unions bargain in good faith to come to an agreement. Furthermore, the Committee recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected [ Digest , loc. cit., para. 70].

&htab;227.&htab;As regards the arbitral and legal process followed with respect to the grievance against Enoxy's subcontracting policy, the Committee notes that the arbitrator seized with the grievance dismissed the employer's timeliness objection, reasoning that the alleged violation was of a continuous nature; he ruled in the union's favour on the merits, concluding that by using a licensing-out system, Enoxy was able to obtain the coal mined from the Pevler complex without being bound by the terms of the collective agreement. The arbitrator ordered Enoxy to terminate its mining subcontracts.

&htab;228.&htab;The employer appealed and a magistrate of the US District Court recommended that the arbitrator's award be set aside, concluding that his finding on timeliness was not supported by the unambiguous and mandatory limitation provisions of the collective agreement. After additional delays due to the illness of two judges to whom the magistrate's report had been referred, a judge of the US District Court affirmed the magistrate's recommendation. It should be noted that the magistrate and the judge of the District Court did not express their opinion on the merits of the case. The whole process between the arbitrator's award and the judge's decision thus took approximately 15 months; since the union has appealed to the US Court of Appeals on 30 September 1988, further delays are to be expected. The final disposition of this grievance will not be known until all avenues of appeal are exhausted. The Committee regrets the excessive length of the appeals procedure used by the complainants. Since subcontracting accompanied by dismissal of union leaders or members can constitute a violation of the principle that nobody should be prejudiced in his employment on ground of union membership or activities, the Committee requests the Government to keep it informed on the final decision issued with respect to the subcontracting grievance filed by the complainant union.

&htab;229.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (a) With respect to the allegations of unfair labour practices, i.e. dismissal of a union leader, refusal to bargain in good faith, the Committee considers that, under the National Labor Relations Act, there existed in this case adjudication procedures to deal with what constituted in fact complaints of unfair labour practices, which the complainant apparently did not pursue.

(b) However, as regards the allegation of subcontracting of mining operations to non-union companies, the Committee regrets the excessive length of the appeals procedure used by the complainant.

(c) Since subcontracting accompanied by dismissals of union leaders or members 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 keep it informed on the final decision issued with respect to the subcontracting grievance filed by the complainant union.

(d) The Committee requests the Government to draw the attention of Ente Nazionale Idrocarburi/Enoxy Coal Corporation to the obligation on both employers and trade unions to bargain in good faith to come to an agreement, and to the fact that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence. The Committee further requests the Government to keep it informed on the development of labour relations at Enoxy Coal Corporation, particularly with respect to the Pevler coalmining complex, and on the measures taken to improve the labour relations climate in this enterprise.

&htab;230.&htab;The Committee last examined Case No. 1417 at its February-March 1988 meeting [see 254th Report of the Committee on Freedom of Association, paras. 493 to 504, approved by the Governing Body at its 239th Session (February-March 1988)].

&htab;231.&htab;At its November 1988 meeting, the Committee noted that despite the time which had elapsed, it had not received all of the information awaited from the Government and stated that, in accordance with the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body, it would submit a report on the substance of the matter at its next meeting, even if the information and observations of the Government had not been received in due time.

&htab;232.&htab;Subsequent to the last examination of the case, the Government sent one communication, dated 11 November 1988, containing information on certain aspects of the case. The complainants sent new allegations in communications dated 27 December 1988 and 5 January 1989.

&htab;233.&htab;Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;234.&htab;When the Committee examined the case at its February-March 1988 meeting, it noted that the complainants' allegations referred to the Government's use of the military and police forces to disrupt strikes being held in the ports and oil refineries based on wage claims (acting on the basis of Legislative Decree No. 1632 of 4 August 1978). They also alleged that Mauro Pires, leader of the Union of Vehicle Drivers and Allied Workers of San Andrés, had been murdered on 4 September 1987; that trade union leader José Barbosa dos Santos had been attacked by two individuals who shot at him from a car; and that union leader Paulo Pereira had received telephone calls threatening his life.

&htab;235.&htab;In this respect, the Committee submitted the following recommendations to the Governing Body [see 254th Report, para. 504, approved by the Governing Body at its 239th Session (February-March 1988)]:

&htab;The Committee requests the Government to take steps for the amendment of the legislation in force, and specifically Legislative Decree No. 1632 of 4 August 1978, so that the list of activities in which strike action is prohibited is confined to essential services in the strict sense of the term (i.e. those whose interruption may endanger the life, personal safety or health of the whole or part of the population). &htab;The Committee requests the Government to reply to the allegations contained in the ICFTU's communication of 26 October 1987 concerning, inter alia, the assassination of the trade union leader Mauro Pires.

&htab;236.&htab;In a communication dated 27 December 1988, the WFTU denounced the murder of trade unionist Francisco Alvez Mendez Filho, leader of the rural workers of Xapuri, in the state of Acre, Amazon region, and national leader of the Workers' Central Organisation (CUT), on 22 December, despite being under the official protection of the federal police and the state Government.

&htab;237.&htab;In a communication dated 5 January 1989, the ICFTU also denounced the murder of trade union leader Francisco Alvez Mendez Filho, President of the rubber industry trade union (SERINGA) and member of the national executive of the CUT.

&htab;238.&htab;In a communication dated 11 November 1988, the Government refers to the strikes held in March 1987 in the port, maritime and petroleum sectors and states that the new Brazilian Constitution adopted on 5 October 1988 does not prohibit strikes in essential activities. Article 9 provides that the right to strike is guaranteed and that it is for the workers to decide whether strike action is appropriate and what interests they should defend through such action; paragraph 1 of the same Article 9 stipulates that the legislation shall define essential services or activities and make provision for the pressing needs of the population.

&htab;239.&htab;The Government's communication concludes by pointing out that the legal restrictions referred to by the ILO have been transcended by these constitutional provisions concerning the right to strike, which will lead to the enactment of new legislation on this subject.

&htab;240.&htab;Before examining the substance of the case, the Committee considers it necessary to recall the observations which it made in its first report [para. 31] and which it has since had occasion to repeat in various circumstances. The Committee is convinced that, if the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them.

&htab;241.&htab;The Committee deeply regrets the fact that the Government has not sent all the information requested by the Committee and that, in view of the time which has elapsed, it is obliged to examine the case without having full information at its disposal.

&htab;242.&htab;The Committee observes that the pending allegations refer to the murder of two trade union leaders, Mr. Mauro Pires on 4 September 1987 and Francisco Alvez Mendez Filho on 22 December 1988, the attack on trade union leader José Barbosa dos Santos and the death threats received by trade union leader Paulo Pereira. In this connection, it must recall that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected. It urges the Government to provide information in that respect.

&htab;243.&htab;As regards the allegation concerning the disruption of strikes in the port and maritime sector and the petroleum sector, the Committee notes the information sent by the Government to the effect that the new Constitution does not prohibit strikes in essential activities and that the legislation shall define essential activities, in order to lay down rules governing strikes in these sectors. In this respect, the Committee trusts that the definition of essential services laid down by law will refer only to services in the strict sense of the term, i.e. activities whose interruption may endanger the life, personal safety or health of the whole or part of the population.

&htab;244.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee again deeply regrets the fact that the Government has failed to send all the information on the pending allegations: the murder of trade union leaders Mauro Pires on 4 September 1987 and Francisco Alvez Mendez Filho on 22 December 1988, the attack on trade union leader José Barbosa dos Santos and the death threats received by trade union leader Paulo Pereira, and urges the Government to furnish the missing information.

(b) While noting the provisions contained in the new Constitution concerning the right to strike and essential services, the Committee requests the Government to keep it informed of the adoption of any legislation defining or listing essential services and of any repeal or amendment of Legislative Decree No. 1632/78.

&htab;245.&htab;The Committee examined this case at its November 1987 and May 1988 meetings and submitted an interim report to the Governing Body on both occasions [see 253rd Report, paras. 392-424 and 256th Report, paras. 361-382, approved by the Governing Body at its 238th Session (November 1987) and 240th Session (May-June 1988)]. The International Organisation of Employers (IOE) subsequently sent new allegations in communications dated 1 July, 21 October, 25 November and 28 December 1988. The Government replied in communications dated 30 May and 2 October 1988 and 4 January 1989.

&htab;246.&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;247.&htab;When the Committee examined this case at its May 1988 meeting, it made the following recommendations on the pending allegations (see 256th Report, para. 382).

(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 communications media.

(b) The Committee requests the Government to send detailed information on these 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 communications 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;248.&htab;In its communication of 1 July 1988, the IOE alleges that the premises of the Chamber of Commerce, Industries and Agriculture of Panama and the Trade Union of Industrialists of Panama (SIP) are still occupied by the armed forces and have been since 25 February and 25 April 1988, respectively. The IOE sends a copy of the search warrant for the SIP premises and states that the assets and property of this organisation were confiscated. On 26 May 1988, it was not possible to hold an extraordinary meeting of the SIP in its premises because the armed forces occupying them refused permission for this. The continued occupation of these premises and the confiscation of furniture are not in accordance with the corresponding search warrant. The normal activities of the SIP are thus being disrupted, as are those of the Panamanian Association of Exporters and the Centre for the Development of Productivity, both of which also use these premises.

&htab;249.&htab;The IOE adds that Alberto Boyd, President of CONEP, and Carlos Ernesto de la Lastra were arrested on 1 February 1988 and released 24 hours later on bail of $10,000 without having been tried for the alleged charge brought against them of actions against state security.

&htab;250.&htab;On the day and at the place where Mr. Boyd and Mr. Lastra, CONEP officials, were being released, the police arrested Alcides Rodríguez, a journalist from La Prensa , as he was photographing the actual release. His equipment was confiscated and Alcides Rodríguez sentenced, without being able to call upon a lawyer, to 365 days' imprisonment, which was later commuted to a fine of $365 for "lack of respect for the authorities".

&htab;251.&htab;Furthermore, the IOE points out that contrary to the statements made in paragraphs 372 and 380 in the 256th Report of the Committee on Freedom of Association, the newspapers La Prensa , Quiubo , Extra and Siglo have been banned, and the radio stations La Exitosa , Continente and Mundial and Channel V (TV) have been forbidden to broadcast for several months.

&htab;252.&htab;In communications dated 26 September, 21 October and 25 November 1988, the IOE alleges that Alberto Conte, President of the Panamanian Chamber of Advertising Media and member of the CONEP Executive, and Kaiser Dominador Bazán, former President of the Chamber of Commerce, Industries and Agriculture of Panama were arrested, without any charges being brought against them. Alberto Conte's enterprise was broken into and searched and his property was confiscated, after which the undertaking was closed on the alleged orders of the Assistant Prosecutor of the Republic. From a document sent by the IOE, and dated 10 November 1988, it appears that on the day that Alberto Conte was arrested (22 September 1988), he was not allowed to confer in private with his lawyer. The file of the Deputy Prosecutor of the Republic contains no proof or indication that Alberto Conte has committed any punishable offence.

&htab;253.&htab;In its communication of 28 December 1988, the IOE alleges that on Tuesday, 20 December 1988, Roberto Brenes, President of the Panamanian Association of Managers of Enterprises (APEDE) a member organisation of CONEP, and secretary of the CONEP Executive, was arrested by order of the police, without being able to call in a lawyer, and on 21 December was deported. Roberto Brenes is accused of having carried out subversive activities. He denies this charge and challenges the regime to prove it publicly before a court that legally examines his case. As deportation is not provided for either in the Constitution or in the Penal Code of Panama, the police are trying to explain the penalty imposed as "a voluntary exile". The IOE encloses the text of a statement made by Roberto Brenes in Miami, where he had been sent by force, published in the Estrella de Panama on 23 December; in so doing, he was exercising his right of reply to a communication by the police published in this newspaper, according to which he had voluntarily accepted to go into exile.

&htab;254.&htab;The IOE concludes by stating that the actions listed above show the determination of the Government of Panama to intimidate and destroy CONEP and its affiliated organisations, without any consideration for the legal system and judicial guarantees that exist "only in theory" in Panama today.

&htab;255.&htab;First, the Government refers to its previous statements to the effect that under Executive Decree No. 91 of 1987 and Act No. 2 of 5 January 1988, amnesty was granted for several political crimes committed between 1 July and 24 December 1987; this resulted in the lifting of charges against leaders of employers' associations amd directors of communications media who made up, amongst others, the politically inclined group "National Civilian Crusade" and who had committed criminal offences. Under this Amnesty Act, the equipment and other goods seized by the various branches of the Public Prosecutor's Office were ordered to be returned. Both pieces of legislation were intended to demonstrate the State's concern to achieve a climate of peace and tranquility, thus creating a favourable environment for investment and development from which a sound and efficient private firm might benefit, in accordance with the objectives laid down in the Constitution. Nothwithstanding the above-mentioned government initiative, the persons and associations grouped in the so-called "National Civilian Crusade", a movement of a strictly political nature, continued to carry on with its criminal activities aimed at breaching the peace, transgressing the Penal Code and paralysing the country's economic and trade activities; a group of employers' leaders were directly involved in these activities and, to achieve their purposes, they used equipment and materials at the headquarters of their organisations as well as various communication media in order to overthrow the legally constituted Government and disrupt the constitutional system. As a result of this, preliminary proceedings were initiated, by means of various judicial ations taken by the competent authorities, to determine exactly the crimes committed and those responsible for them, always respecting the principles laid down in the Constitution and in the law. In this context, preventive detention orders were issued (section 2148 of the Judicial Code) and measures taken to safeguard the objects under inquiry (section 2185 of the Judicial Code concerning the search of premises and confiscation of goods used in a criminal offence).

&htab;256.&htab;The standards infringed are contained in sections 301, 306 and 372 of the Penal Code which read as follows:

Section 301 : Any person who encourages or directs an armed uprising to overthrow the legally constituted national Government or to change by violent means the political Constitution shall be punished by imprisonment of 15 to 20 years and disqualified from exercising public office for a like period of time.

Section 306 : Any person who in a public place or through the press, radio, television or any other means incites to rebellion, sedition or riot, shall be punished by imprisonment of between six months and two years and fined between twenty and one hundred days' wages.

Section 372 : Any person who through the press or any other means of information disseminates false, exaggerated or tendentious news or propagates rumours which jeopardise the national economy or undermine confidence in the State shall be punished by imprisonment of between six months and three years. If as a result of the previously described actions, there is a depreciation in the national currency or deterioration in the values of state bonds, the penalty shall be doubled.

&htab;257.&htab;The Government stresses that in this case, crimes under the ordinary law were committed against the internal integrity of the State and the national economy; in no event was there infringement of freedom of association. The judicial steps taken were not intended, at any time, to affect the rights and guarantees of the employers' organisations.

&htab;258.&htab;In more precise terms, the Government states that the Public Prosecutor of the First Circuit Court is conducting initial proceedings to investigate crimes against the internal integrity of the State and the national eonomy, in which it appears that many people are involved who are engaged in the activities of the group known as the "National Civilian Crusade". This group has objectives of a purely political nature and has repeatedly been involved in activities designed to disrupt the constitutional system. Several steps were deemed necessary to determine whether or not any such crimes had been committed or to identify who committed or took part in them; these included the searching of the premises, during which several items and instruments used in the crimes committed were discovered, and the preventive detention of several people. Alberto Bolívar Conte was amongst those ordered to be arrested in accordance with the procedures laid down by law. He benefited from bail to obtain conditional release but was re-arrested when he committed another punishable act, thereby forfeiting his right. Furthermore, arrest warrants were issued on Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga and Roberto Brenes. Although there was serious evidence against these persons, they requested bail in order to be released and were granted this right. Similarly, they requested permission to leave the country and go abroad to see to their commercial activities; consequently, their files have remained for a long period of time in the competent judicial office. It is for this reason that, to date, their juridical situation within the initial proceedings has not yet been determined.

&htab;259.&htab;The Government continues by stating that the Deputy Public Prosecutor of the Attorney General's Office is also conducting initial proceedings to investigate the criminal offences of usurpation of public offices and undermining the internal integrity of the State. Kaiser Dominador Bazán is amongst those linked to such criminal actions. After having made an unsworn statement, during which he enjoyed his constitutional and legal rights in full, he admitted that he had played a direct role in the actions under investigation, upon which the investigating official ordered his arrest. At present he is not detained because he immediately applied for bail.

&htab;260.&htab;As regards the other arrests of employers' leaders, the Government states that according to the Public Prosecutor of the Eighth Instance of the First Circuit Court of the Province of Panama (entrusted with carrying out the investigation on crimes committed by persons belonging to the so-called "National Civilian Crusade"), there was evidence that crimes had been committed against the internal integrity of the State and security of the national economy and that Alberto Boyd and Carlos Ernesto de la Lastra, leaders of employers' organisations, were involved in these crimes. Consequently, their preventive detention was ordered in accordance with procedures laid down by law, although they successfully applied for bail.

&htab;261.&htab;From the documentation provided by the Government, which comes from the Public Prosecutor's Office, it may be inferred: (1) that the National Council of Private Enterprises is a member of the "National Civilian Crusade" and belongs to its Executive Committee; (2) that at least several warrants for arrest (in any case that of Alberto Boyd) were issued against persons suspected of having had a part in drafting a document entitled "Proposal for a programme of transition to democracy" which was distributed in the street and published in the press; the name "National Civilian Crusade" appeared on the lower part of the document; (3) that the above-mentioned "Proposal" proposed, amongst other measures, the setting up of a provisional Government Junta, composed of one member appointed by the opposition political parties and two members appointed by the National Civilian Crusade and advocated that the Legislative Assembly should cease functioning and that the judicial system and Public Prosecutor's Office should be restructured; (4) that articles in the newspapers La Prensa and Siglo , dated 25, 26 and 27 January 1988 (which it is assumed were written by the Executive of the National Civilian Crusade) incited the Panamanian people as a whole not to pay taxes and to delay paying for public services provided by government institutions. The Government also encloses a letter from the Confederation of Workers of the Republic of Panama, dated 29 September 1988, in which this organisation puts on record its rejection of the smear campaign being carried out internationally by the employers' organisations who are claiming that employers' associations are victims of the Panamanian crisis.

&htab;262.&htab;The Committee notes that in the present case, which it is examining for the third time, the allegations basically refer to the arrest and prosecution of employers' leaders, the deportation of an employers' leader, the continued occupation of the headquarters of two employers' organisations, the closure of major communications media and violent acts perpetrated or tolerated by the police against employers' leaders in 1987. In its latest replies, the Government has pointed out generally that: (1) the present case is involved with crimes under the ordinary law against the internal integrity of the State and the national economy, which prompted preventive detentions and proceedings; (2) that apart from Alberto Conte, the employers' leaders concerned were released on bail and even able to travel outside the country; (3) that the arrests, searches and confiscation of goods which occurred were in accordance with current criminal procedures; (4) that certain communication media had incited the population not to pay taxes and to delay paying for public services; (5) that in spite of the Government initiative, culminating in the Amnesty Act of 5 January 1988, which benefited, amongst others, the employers' leaders, people and associations grouped in the so-called "National Civilian Crusade", which the Government alleges to be a movement of a strictly political nature, criminal actions to disrupt public law and order, transgress regulations in the Penal Code and paralyse the country's economic and commercial activities continued; furthermore, a group of employers' leaders were directly involved in these actions and, in order to further their aims, they used equipment and material housed in the headquarters of these organisations, as well as various communications media, with a view to overthrowing the legally constituted Government and disrupting the constitutional order.

&htab;263.&htab;The Committee wishes to refer to the conclusions it reached at its May 1988 meeting:

While the Committee takes note of the Government's statements relating to the political objectives of the organisation known as the National Civilian Crusade, it wishes to point out ... 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 Civilian Crusade have hampered the exercise of the rights of employers' organisations and their leaders.

In this respect, the Committee deeply regrets that in spite of its repeated requests, the Government has not sent detailed information on the specific acts which, in each case, led to the proceedings against the employers' leaders, Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán and Alberto Boyd, and on the stage reached in the proceedings. The Committee does not have this information at its disposal in spite of the fact that in most cases the prosecutions date back about one year. The Committee stresses that respect for due process of law should not preclude the possibility of a fair and rapid trial and that, on the contrary, an excessive delay may intimidate the employers' leaders concerned, thus having repercussions on the exercise of their activities.

&htab;264.&htab;As regards the continued occupation of the headquarters of the Chamber of Commerce and the Trade Union of Industrialists of Panama by the army, the Committee regrets that the Government merely stated in a general way that the employers' leaders under investigation used equipment and material housed in the headquarters of their organisations with a view to overthrowing the Government and disrupting the constitutional order. In this respect, the Committee points out that the headquarters of the Chamber of Commerce and the Trade Union of Industrialists of Panama are still occupied by the army and have been since 25 February and 25 April 1988, respectively. Given that the occupation of these premises deprives the organisations concerned of basic means whereby they may carry out their normal activities and in view of the time that has elapsed since the army first occupied these headquarters (about a year), the Committee is of the opinion that this occupation should come to an end immediately and that the goods confiscated should be returned and it urges the Government to take steps in this respect.

&htab;265.&htab;Furthermore, although the Committee infers from the Government's statements that the closure of the newspapers La Prensa and Siglo was on account of articles published on 25, 26 and 27 January 1988 (supposedly drafted by the Executive of the National Civilian Crusade), inciting the population not to pay taxes and to delay paying for public services, it regrets that the Government has not provided specific information on the closure of each of the other communications media mentioned by the complainant organisation (newspapers Quiubo and Extra , radio stations La Exitosa , Continente and Mundial and the Canal V television channel). The Committee stresses that these communications media were closed down several months ago and expresses the hope that they will recommence normal operations in the very near future. The Committee draws the Government's attention to the fact that the right of workers' and employers' organisations to express their views in the press or through other media is one of the essential elements of freedom of association and that consequently governments should refrain from unduly impeding its lawful exercise [see, for example, 261st Report, Case Nos. 1129, 1298, 1344, 1442, and 1454 (Nicaragua), para. 36].

&htab;266.&htab;Finally, the Committee notes that the Government failed to reply to certain other allegations: the breaking into, searching, confiscation of goods and closure of the enterprise of the employers' leader Alberto Conte, who was arrested and refused authorisation to confer in private with his lawyer; the deportation of the employers' leader, Roberto Brenes; the arrest and fining of the journalist Alcides Rodríguez whilst he was photographing the release of two employers' leaders; violent acts perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their enterprises in June and July 1987.

&htab;267.&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 the situation of employers' organisations and their leaders in Panama is continuing to worsen, as evidenced by the prosecution of ten employers' leaders and the arrest of one of these, the continuing occupation of the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama and the closure of major communications media used regularly by the employers' organisations.

(b) The Committee deplores the fact that the Government has failed to provide detailed information on the specific acts which, in each case, led to the trials pending against the ten employers' leaders, and on the stage reached in the corresponding proceedings. It presses the Government to send this information as a matter of urgency, and stresses that respect for due process of law should not preclude a fair and rapid trial.

(c) The Committee urges the Government to take the necessary steps to ensure that the continuing occupation of the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama ends immediately. (d) The Committee notes that major communications media have been closed down for months and stresses that the right of workers' and employers' organisations to express their views in the press or through other media is one of the essential elements of freedom of association; consequently the authorities should refrain from unduly impeding its lawful exercise. The Committee expresses the hope that the communications media now closed may recommence normal operations in the very near future and requests the Government to keep it informed of any further developments in this respect.

(e) The Committee requests the Government to send its observations on the allegations to which it has not replied: the breaking into, searching, confiscation of goods and closure of the enterprise of the employers' leader Alberto Conte; deportation of the employers' leader Roberto Brenes; arrest and fining of the journalist Alcides Rodríguez; violence against the leaders of the Chamber of Commerce and their enterprises.

&htab;268.&htab;The Kilusang Mayo Uno (KMU) presented a complaint of alleged violations of trade union rights against the Government of the Philippines in an initial communication of 25 February 1988. It sent additional information on 28 May and 21 November 1988, and 24 January 1989. The World Federation of Trade Unions (WFTU) also presented a complaint concerning the same matters in a letter dated 8 November 1988.

&htab;269.&htab;The Government supplied its observations on the case in communications dated 9 January and 10 February 1989.

&htab;270.&htab;The Philippines have 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 Rural Workers' Organisations Convention, 1975 (No. 141).

&htab;271.&htab;In its lengthy communication of 25 February 1988, the KMU alleges rampant and continuous violations of Conventions Nos. 87, 98 and 105 by means of trade union repression and the formation of at least 142 vigilante groups engaged in anti-worker activities. It refers to previous cases against the Philippines (Nos. 1192 and 1323 which it lodged in 1982 and 1985 respectively) and alleges that the present Government has done little to improve the political and economic conditions of Filipino workers. It alleges in fact that from March 1986 the Government has used both indirect means and direct police action and court or administrative orders to repress labour organisations, including the KMU, its leaders and members.

&htab;272.&htab;As examples of indirect repression, the KMU refers to: the misuse of President Aquino's popularity (May Day Speech whose promises have not been fulfilled); the use of extremist groups' threats to justify irrational government policies (e.g. rightist coup attempts or red-scare tactics); claims of inherited general economic problems even after two years in power; alleged union rivalries; the replacement of a pro-labour Minister of Labour by the former Vice-President of the Employers' Confederation of the Philippines; bias in the appointment of labour delegates to the 1986 Constitutional Commission; the proposal to enact a National Internal Security Act providing for arrest and detention without warrant on the ground of a danger to national security; the creation of false hopes through the adoption of unsound recovery and reform programmes. The KMU alleges the collusion of the media in misleading and intimidating the workers.

&htab;273.&htab;The KMU lists 15 pieces of labour relations legislation adopted by the previous Government which it claims to have exposed as being anti-union and anti-worker in character. It cites the current President's promise in a campaign speech to "revise and rescind laws that repress the rights of workers and their trade unions" and points out that, as early as March 1986 (the month following the change of government), the KMU presented to her, through the then Minister of Labour, a list of proposals to repeal and amend these laws. Again the President made certain commitments in her May Day Speech of 1986, but the KMU claims that the workers are still awaiting action in this regard. For example, Executive Order No. 111 was issued on 24 December 1986 but published in the Official Gazette only on 16 February 1987 and did not fully repeal the Labour Code (No. 442) or anti-strike legislation.

&htab;274.&htab;According to the KMU, the Government is too influenced by big business, vested interests and foreign monopolistic companies. It claims that the new Constitution did not resolve the workers' grievances and, indeed, by virtue of its article 7 provides that all existing laws shall remain operative until amended or repealed by the National Assembly; the KMU points out that since the Assembly is still getting organised and has set other legislative priorities, Filipino workers remain faced with the same repressive laws. In addition, it claims that the Government not only appointed a labour leader from a rival organisation (the TUCP) to the Constitutional Commission, but supported a TUCP official in the latest elections and continues to recognise the TUCP as a dominant labour centre although statistics show it to be in the minority.

&htab;275.&htab;As examples of direct police, military and paramilitary repression, the KMU refers to: physical assaults on and killing of picketers and striking workers; arrest, detention and prosecution of strikers as well as confiscation and forfeiture of their property; destruction of strikers' banners and other means of publicity; abduction, murder and intimidation (through surveillance and threats) of strike leaders; non-observance of current legislation on strikes (e.g. keeping a 50-metre distance from the picket line); use of vigilante groups; use of spies within unions or factories; support for company-dominated unions.

&htab;276.&htab;The KMU cites four specific occasions when the Government allegedly failed to act decisively to redress violations of trade union rights: (1) the slaying of the KMU Chairman Rolando M. Olalia and his driver Leonor Alay-ay on 13 November 1986; (2) the violent dispersal of marchers in front of the United States Embassy on 4 July 1986; (3) the massacre of six workers in Mendiola on 22 January 1987 (see Annex); (4) the brutal dispersal of striking employees on 31 January 1987 at Mariveles, Bataan. It also alleges that during the Government's two years in office, a total of 654 persons have been arrested, 413 injured, 30 killed (in addition to the above-mentioned massacre) and 20 reported missing and refers to lists it provides compiled by the Manila-based Commission on Trade Union and Human Rights.

&htab;277.&htab;It also refers to repression through administrative and judicial decisions, often issued without due notice and hearings and coloured by incompetent judges, corrupt labour officials and undue delays (sometimes over two years) in dealing with cases. For example, on several occasions the Secretary of Labour has exercised his discretion under section 264(g) of the Labour Code either to assume jurisdiction over a strike or to certify a labour dispute to the National Labour Relations Commission (NLRC) for compulsory arbitration; once either action is taken, the union is prevented from declaring a strike and strikers are compelled to return to work. Moreover, according to the complainant, when an order is made in such circumstances, it does not resolve the grievance in dispute. For example, it claims that in compulsory arbitrations the NLRC regularly issues injunctions based on the provisions of sections 218(e) and 265 of the Labour Code (to stop strikes or slow-downs), without due notice and hearings, and using the police and military to implement them. Employers allegedly then hire gangsters to join in the violent dispersal of strikers at picket lines. The KMU cites statistics for January to December 1987 during which period eight strikers were killed, 190 injured, 12 reported missing and 509 arrested after such picket-line violence.

&htab;278.&htab;As for the regular courts, the KMU claims they issue ex parte injunctions despite lack of authority to do so. This prompted the KMU to protest to and seek dialogue with the Chief Justice of the Supreme Court on 13 August 1986, a request that went unheeded. In addition, appeals from the Department of Labour decisions to the Supreme Court take years to be heard and, in any case, the Supreme Court has consistently upheld the validity of the past regime's anti-labour laws. The KMU also criticises the provisions of Department of Justice Circular No. 10, enforced by the courts since 3 July 1987, which substantially increases the amount of bail for provisional release of accused persons; inability to raise the bail means that strikers may spend weeks in prison.

&htab;279.&htab;In summary, the KMU notes that as early as August 1986 its General Secretary appealed to the President to stop trade union repression in the form of an 11-point demand, none of which was acted on. Although the President released from military detention several political and trade union detainees, human rights violations continue unabated: in this regard the KMU attaches copies of its numerous protests and detailed collations of events (including photographs and press clippings), in particular concerning atrocities in Visayas and Mindanao. One of the detailed lists supplied is dated 28 September 1987 and was addressed to the Regional Director of the Department of Labour in Bacolod City (capital of Negros) by the National Federation of Sugar Workers/Food and General Trades (NFSW/FGT) pursuant to a Presidential Directive asking the Department to take appropriate action on complaints filed by human rights groups. Another list, 19 pages long dated 12 February 1988 and entitled "Human Rights Violations", goes into great detail about the date and place of over 120 incidents, the names and addresses of the victims, the methods used (stabbings, illegal searches, punching during interrogations, etc.), the perpetrators (from specifically named military officers to descriptions such as "unidentified men in fatigue uniform") and the reasons (covering union membership and "suspected New People's Army (NPA) member" or even "unknown"). It also annexes a copy of the Task Force Detainees of the Philippines (TFDP) "Statistical report on human rights violations for the period 1 January to 31 December 1986" and information on the murder, wounding, disappearances or arrests of members of non-KMU labour organisations.

&htab;280.&htab;Lastly, the KMU describes the emergence of vigilante anti-communist and cult groups - allegedly supported by the Government - and their involvement in trade union repression. For example, the hacking to death of unionist Peter Alderite of Davao City by the "Tadtad" group. It annexes its own preliminary list of such groups as well as that prepared by the Philippine Alliance of Human Rights Advocates from which it appears that the Presidential Committee on Human Rights called for the dismantling of the particular umbrella group called "Alsa Masa" (uprising of the masses) whose power is such that the Davao City council granted it a budgetary allocation. The KMU addresses an appeal for an immediate on-the-spot investigation by the responsible ILO Committee.

&htab;281.&htab;To its communication of 28 May 1988, the KMU attaches a copy of the 18 March 1988 Report of the Committee on Justice and Human Rights of the Philippine Senate, which recommends the dismantling of vigilante groups and the prosecution of their members who have committed criminal acts and human rights violations.

&htab;282.&htab;The WFTU, in its letter of 8 November 1988, also refers to the 1986 assassination of KMU Chairman Rolando Olalia and the July 1988 disappearance of Benjamin Clutario, member of the Public Information Bureau of the KMU, as well as the assassination on 10 October 1988 of Oscar Bantayan, a KMU national council member and Deputy Secretary-General of the National Federation of Labour.

&htab;283.&htab;The KMU, in its communication of 21 November 1988, alleges that after a successful strike by jeepney (local taxis) drivers that day in Manila, Mr. Medardo Roda, leader of the Jeepney Drivers Alliance - PISTON, held a press conference and was arrested at the National Press Club by General Lim of the Western Police District. Mr. Roda is charged with inciting public unrest. It further alleges that Rosero Alberio, a KMU shop steward at the Atlas Mining Corp. in Cebu was shot dead on 14 November 1988, presumably by vigilante groups. That same evening, according to the KMU, Egor Mencindo Cueva, also a shop steward at Atlas Mining, was shot at.

&htab;284.&htab;The KMU, in its communication of 24 January 1989, alleges that on 20 January suspected vigilantes shot dead Mr. Meliton Roxas outside the Nestlé factory in Cabuyao, Laguna. He was union president in Nestlé Cabuyao, an affiliate of the KMU. According to the complainant, his death came about when the Nestlé union was involved in a dispsute with the management over unfair labour practices, namely the dismissal of union leaders. The KMU believes that the management is behind the killing because it was well orchestrated, well financed and politically motivated. It adds that on 17 January 1989, Mr. Rodrigo Francisco, NFSW local union president, and Mr. Nestor Barros, organiser, were killed by vigilantes and soldiers in Negros. Prior to this, the military massacred certain families in Escalante and tortured Mr. Samuel Sabidalas, the NFSW Regional Co-ordinator.

&htab;285.&htab;In its communication of 9 January 1989, the Government points out that the KMU is not a duly registered labour centre under the national legislation and notes that there are other labour organisations which are officially registered and claim more membership. It thus stresses that the KMU does not have the sole right to speak on behalf of the Philippine labour force, but it does not dispute the KMU's right to be heard. The Government also takes exception to certain expressions used by the KMU implying, in particular, a conspiracy on the part of members of the Government and its officials to commit the acts complained of in this case.

&htab;286.&htab;As regards the allegations themselves, the Government points out that the KMU has made several general statements, e.g., that "the respondents are suppressing democratic trade unionism in the Philippines and repressing trade union rights of the Filipino workers, their labour organisations and their leaders". It considers that it is not necessary to reply to every general statement so made, and in this connection puts forward a general reply that the Government and the officials named in the complaint have no intention of committing or sanctioning any act which is inimical to the interest of each Filipino worker. On the contrary, as public officials, it is their sworn duty to protect and defend the Constitution, which provides in article XIII, section 3:

&htab;The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

&htab;It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

&htab;The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

&htab;The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.

&htab;287.&htab;In addition, the Government points out that the KMU makes allegations which stem from the continuing rivalry among labour groups, e.g. "appointing a TUCP official to the Constitutional Commission and the New Congress of the Philippines". It likewise refrains from making comments on allegations of this nature, and states that it can only make comments on those allegations which may be considered as allegations of fact and specific and germane enough to warrant such comments.

&htab;288.&htab;Turning to the specific alleged violations of trade union rights, the Government notes that the KMU refers to repression through continued implementation of anti-worker and anti-union laws, citing 15 pieces of legislation all enacted under the previous administration. The Government replies that it is morally impossible to dismantle overnight an allegedly oppressive machinery built up over a 14-year period by a totalitarian regime, unless done under a regime more totalitarian than that which it has replaced. It admits that after February 1986 and before the ratification of the 1987 Philippine Constitution, President Aquino had the power to legislate, but stresses that instead of exercising such powers to the hilt, she chose to restore democracy in the Philippines within the shortest time possible.

&htab;289.&htab;The Government lists the achievements of the current administration:after her assumption of office in February 1986, the President promulgated a "Freedom Constitution"; she convened a Constitutional Commission to draft a Constitution which was ratified overwhelmingly in a plebiscite in early 1987; in May 1987, the first real election in 18 years for members of the legislative body was held; in January 1988, the first real election in 16 years for local officials was held. The Government claims that this manifests the thrust of the present administration to restore the law-making function to the freely chosen representatives of the people. It did not succumb to the temptation which has always confronted those who, by accident or by design, have assumed absolute power.

&htab;290.&htab;In addition, the Government lists the following concrete steps taken by the present administration in respect of the legislation:

(1) Promulgation of Executive Order No. 111 on 24 December 1986 (which, among other things, repealed Letter of Instruction 1458, which had allowed management to replace striking workers who defied return-to-work orders); repeal of the one-union-one-industry policy, thus granting labour the discretion to organise and combine; liberalisation of restrictive Labour Code requirements such as the strike vote and union registration requirements; banning of police and military forces from picket lines, except when criminal acts are committed therein.

(2) Convening of a tripartite committee composed of representatives of Government and labour and employers to discuss labour legislation, at which the KMU was accorded the opportunity to be represented and heard. Thus far, the committee has adopted at least 23 proposed amendments to the various labour laws. Among such proposals are: promotion of the use of voluntary modes of dispute settlement, particularly voluntary arbitration; promulgation of comprehensive guide-lines to ensure due process before an injunction can be issued by the National Labour Relations Commission; strict implementation of the 50-metre rule for peace-keeping forces during strikes and the no-carrying-of-firearms rule for peace-keeping forces and security guards; allowing striking workers to put up temporary structures for shelter, provided such structures do not obstruct free ingress and egress, as well as public thoroughfares. It is expected that the committee shall continue its meetings to propose additional legislation.

&htab;291.&htab;The proposals of the committee have been endorsed by the present administration and have been certified as urgent legislative proposals.

&htab;292.&htab;As regards the alleged worker repression through injunctions, the Government states that under the present law, even temporary injunctions may be issued by the NLRC only after due notice and hearing: section 218(e) of the Labour Code. In any event, the tripartite committee referred to above has proposed the establishment of more comprehensive guide-lines and these are pending with the legislature.

&htab;293.&htab;As to the granting of an injunction which becomes a matter of course when the Secretary of Labour assumes jurisdiction over a particular labour dispute, the Government points out that the KMU itself has, in several instances, requested the Secretary of Labour to assume jurisdiction. It notes that the Secretary of Labour assumes jurisdiction only in cases where the dispute is likely to affect adversely the national interest, such as disputes in hospitals, public utilities and companies engaged in the generation or distribution of energy.

&htab;294.&htab;With regard to the alleged worsening of economic conditions over the past two years, the Government refers to the following facts: it is now in the process of implementing a comprehensive agrarian reform programme; prior to 1986, the annual GNP growth was negative, but grew by 1.5 per cent in 1986, 5.1 per cent in 1987 and 6.7 per cent in 1988; prior to 1986, in a span of four years the value of the Philippine peso depreciated by as much as 160 per cent, however, since 1986, notwithstanding various internal and external pressures, the peso has been stable. It adds that the present administration has enacted various laws to improve the lot of workers, for example, to remove the 1,000 peso ceiling on the 13th month pay; to integrate the cost-of-living allowance into the basic wage; to grant wage increases, particularly for low income earners.

&htab;295.&htab;As regards alleged direct repression through the police, military and paramilitary units, the Government states categorically that the Constitution, the law and the Government do not tolerate any form of trade union repression. Anyone who does so is subject to criminal prosecution. There may have been incidents where members of the police or military have committed such acts or even murder, kidnapping, etc., but such crimes were the individuals' own acts, for which they too will be held liable. To prevent such events from occurring, an accord between the military, organised labour and the Department of Labour and Employment was reached on 21 September 1988. The accord is not only expected to ease the apprehension of workers when restraining orders are served, but to ensure the co-ordination between the military and the Labour Department in facilitating the investigation of cases involving labour leaders and vigilante groups.

&htab;296.&htab;On the other hand, states the Government, there have been incidents where striking workers have resorted to methods which were not peaceful and orderly. No immunity is granted under Philippine law, as in the laws of other jurisdictions, for those who, in the guise of exercising their rights, transgress the rights of others. It supplies statistics for the last six years on the number of labour organisations cancelled or registered, the number of collective bargaining agreements filed and the number of workers covered by them.

&htab;297.&htab;Likewise for the alleged creation of vigilante groups the Government states categorically that the administration and the law do not tolerate any person or group of persons who take the law into their own hands. Such person or group is subject to criminal prosecution under Philippine law. It acknowledges, however, that there has been an alarming increase in the number of insurgent terrorist-instigated violent incidents which have caused the spontaneous proliferation of civilian volunteer organisations for community self-defence against criminals and other lawless elements. Thus, in order that respect for the law and human rights is observed by these volunteer organisations, guide-lines for their operations were issued on 30 October 1987. The guide-lines provide, among others, that (1) volunteer organisations shall exclusively be for self-defence and protection; (2) membership shall be purely on a voluntary basis and thoroughly screened to weed out criminal elements; (3) such organisations shall not engage in any activity contrary to the law and any member who commits any offence shall be prosecuted. Furthermore, such organisations are also not allowed to operate offensively against the right of self-defence.

&htab;298.&htab;The Government points out that a mechanism has been set up so that the guide-lines and safeguards may be monitored. It stresses that the guide-lines seek to ensure that civilian volunteer self-defence organisations do not commit any abuses or any actions contary to law; that victims or complainants will be given justice and the abusers investigated and charges laid in court when warranted. To stop the proliferation of such unsupervised civilian volunteer self-defence organisations, the Civilian Auxiliary Force Geographical Unit (CAFGU) was created under the authority of the Department of National Defence. Moreover, in response to the increasing reports that a number of labour leaders have been disappearing, the Department of Labour and Employment and the Department of National Defence together with representatives from the labour sector created a committee that will look into and investigate such disappearances. This would make it easier for the Government to prosecute those who have been found responsible for such disappearances. The creation of the committee is also expected to give the Philippines Commission on Human Rights the necessary assistance and facilitate the investigation of these unfortunate incidents.

&htab;299.&htab;The Government emphasises that respect for human rights is one of the top priorities of the present administration, as proven by the fact that one of its first acts was the creation of a Presidential Committee on Human Rights to investigate and recommend prosecution of those guilty of human rights violations, followed by the creation of an independent Commission on Human Rights under the 1987 Constitution. While recognising the existence of problems in respect of trade unionism, it gives the assurance that it shall continue to adhere to the principles of free trade unionism and the recognition of human rights.

&htab;300.&htab;In its communication of 10 February 1989, the Government states that Mr. Roda (referred to in the KMU telex of 21 November 1988) has been released on bail after being arrested for breach of the peace and incitement to sedition; formal charges have been filed and the trial is under way. It adds that as regards the deaths of Messrs. Alberio, Roxas, Francisco and Barros, the military and the police are presently investigating these matters, as is the Philippines Congress. The Philippines Commission on Human Rights is examining to date only the Roxas case, since it is the subject of a specific complaint before it. The Government states that other details will follow later.

&htab;301.&htab;The Committee notes that the Government has not replied in full to all of the complainants' communications of 8 and 21 November 1988 and 24 January 1989, which contain specific allegations of arrest and murder of officers of the KMU and its affiliated organisations. It accordingly sets aside its examination of these aspects of the case and requests the Government to send its detailed comments and additional information as soon as possible.

&htab;302.&htab;As regards the KMU's allegation that the present Government has indirectly repressed the workers by not immediately repealing the legislation enacted by the previous regime, the Committee notes the Government's statements that Executive Order No. 111 of 1986 did in fact repeal some of the offensive past legislation and that a tripartite committee has drafted concrete proposals which are to receive urgent legislative attention. The Committee recalls that these developments were already noted with interest by the Committee of Experts on the Application of Conventions and Recommendations in its 1987 observation concerning the Government's observance of Convention No. 87. At the same time the Experts drew attention to certain provisions of the Labour Code the repeal or amendment of which has been requested for some time. The present Committee likewise criticised some of the legislative enactments listed in the present case in an earlier case, to which the KMU in fact refers (Case No. 1323, 241st Report, paragraphs 341-374, approved by the Governing Body in November 1985).

&htab;303.&htab;While conscious of the care any government must employ when attempting a major revision of labour legislation, the Committee would nevertheless urge the Government to do its utmost to facilitate the rapid enactment of the proposals already agreed upon by the tripartite committee described above and to give particular attention to the points raised by the Experts over the past several years so that full conformity between the labour legislation and the requirements of Convention No. 87 can be achieved. The Committee refrains from commenting on the composition of the tripartite committee since it appears that the complainant was able to present its views therein.

&htab;304.&htab;The Committee notes that the KMU's second basic allegation centres on repression of strike action through administrative decisions or judicial injunctions and that the Government replies that proposals are currently before the legislature to tighten procedures for the issuing by the NLRC of temporary injunctions in strike situations. As for the role of the Secretary of Labour (who can assume jurisdiction over a labour dispute likely to affect the national interest), the Committee would recall that it is precisely this provision in the Labour Code (section 264(g)) which has been criticised by the Committee of Experts for many years as being too broad.

&htab;305.&htab;It accordingly repeats the principles of the ILO supervisory bodies on this matter, namely that strike action may be banned or limited only in the public service or essential services in the strict sense of the term, i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population [see General Survey of the Committee of Experts on the Application of Conventions and Recommendations , 1983, para. 214 and Digest of Decisions and Principles of the Committee on Freedom of Association , 1985, paras. 387 and 394]. Like the Committee of Experts in its most recent observation of the Philippines' observance of Convention No. 87, the present Committee requests the Government to amend section 264(g) so as to restrict the imposition of compulsory arbitration to strikes in essential services as fall within this definition.

&htab;306.&htab;The Committee notes that the Government makes no comment on the alleged abuse of Department of Justice Circular No. 10 which, since July 1987, has meant that many accused strikers cannot raise bail, or on the alleged problems and delays in the regular court system. It accordingly requests the Government to send its observations on this aspect of the case as soon as possible.

&htab;307.&htab;As regards the alleged direct repression of strikers and union members and officials by the police, military, paramilitary or employer-backed gangsters, as well as by vigilante groups, the Committee notes that it has already examined similar allegations in a recent KMU complaint concerning, in particular, Negros Province (Case No. 1426, 259th Report, paragraphs 564-588, approved by the Governing Body in November 1988). It observes that the Government's reply concerning the involvement of the military and vigilante groups (e.g. the October 1987 guide-lines, the creation of the Civilian Auxiliary Force Geographical Unit, and inter-departmental co-operation through committees and accords in investigating complaints) repeats the information supplied in that previous case, as do the indications supplied on the investigatory role played by the Philippines Commission on Human Rights.

&htab;308.&htab;In view of the Government's recognition of some cases of extremely serious criminal activity by individual members of the forces of law and order and the "alarming increase" of violence which, according to the Government, has caused the proliferation of "self-defence" groups, the Committee must stress that a climate of violence such as that surrounding the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and that such acts require severe measures on the part of the authorities to punish those responsible and avoid recurrences [see Digest , para. 76]. Even more, the Committee draws the Government's attention to its general principle that a genuinely free and independent trade union movement can only develop in an atmosphere free of violence, pressure and threats of any kind and where there is respect for basic human rights [see, in particular, 259th Report, Case No. 1434 (Colombia), para. 660, approved by the Governing Body in November 1988].

&htab;309.&htab;The Committee can only deplore the increase in anti-union violence documented by the complainants and noted in relation to the population in general in the Philippines Senate Report. The Committee therefore presses the Government to do all in its power to curb criminality by certain members of the police and armed forces and to adopt vigorous measures to dismantle the vigilante groups. This is, in fact, the first specific recommendation listed by the Philippines Senate Committee on Justice and Human Rights in its March 1988 report.

&htab;310.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to send as soon as possible its detailed comments and further information on the complainants' communications of 8 and 21 November 1988 and 24 January 1989 which concern specific allegations of arrest and murder of officers of the KMU and its affiliates.

(b) The Committee also requests the Government to reply on the alleged abuse of Department of Justice Circular No. 10, which, since July 1987, has meant that many accused striking workers have not been able to obtain bail.

(c) It urges the Government to do its utmost to facilitate the rapid enactment of the proposals already agreed upon by the tripartite committee set up to revise the labour relations legislation and to give particular attention to the points criticised by the Committee of Experts over the past several years so that full conformity between the labour legislation and the requirements of Convention No. 87 can be achieved. (d) The Committee, like the Committee of Experts, requests the Government to amend section 264(g) of the Labour Code so as to restrict the imposition of compulsory arbitration to strikes in essential services.

(e) The Committee deplores the increase in anti-union violence demonstrated by numerous deaths and disappearances documented by the complainants and presses the Government to do all in its power to curb criminality by certain members of the police and the armed forces and to adopt vigorous measures to dismantle the vigilante groups.

(f) The Committee refers the legislative aspects of this case to the Committee of Experts.