&htab;21.&htab;The complaint is contained in a communication from the National Trade Union of Press Workers (SNTP) of 27 May 1988. The Government replied in a communication dated 26 January 1989.

&htab;22.&htab;Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;23.&htab;In its communication of 27 May 1988, the National Trade Union of Press Workers (SNTP) alleges that on 30 October 1987, it submitted a draft collective agreement to regulate labour relations between the enterprise "The Daily Journal C.A." and its workers (represented by the SNTP). Four days later, the enterprise dismissed the workers Heather Scott and Beatriz Jaramillo (the latter is an SNTP union official).

&htab;24.&htab;The SNTP adds that on 5 November 1987, the Labour Inspectorate summoned the parties with a view to starting conciliatory talks but, on this occasion, the enterprise raised objections. On 7 January 1988, the Labour Inspectorate issued an administrative decision in which it pronounced in favour of the trade union and ordered the enterprise to discuss the draft collective agreement. On 12 January 1988 the enterprise appealed against this decision and subsequently, on 25 February 1988, requested the National Labour Directorate to carry out a "reinspection", which was ordered in a decision of 12 April 1988.

&htab;25.&htab;According to the complainant organisation, this constitutes an infringement of legal guarantees and a clear obstruction of collective bargaining, especially when the administrative authorities allow the use of legal concepts that do not exist in legislation, such as in the case of "reinspection", for which no specific body is competent.

&htab;26.&htab;In its communication of 26 January 1989, the Government states that in accordance with the provisions contained in section 369 of the Labour Act, concerning trade union immunity, the Labour Inspectorate ordered the reinstatement of the dismissed workers.

&htab;27.&htab;The Government adds that in resolution No. 7275 of 1 June 1988, the Ministry of Labour reached a decision on the appeal lodged by the enterprise "The Daily Journal C.A." against the ruling of the Labour Inspectorate, ordering the enterprise to discuss the draft collective agreement. This resolution states the following:

... In accordance with the legal powers vested in it, this Ministry rejects, for the reasons given above, the appeal and upholds the decision handed down by the Labour Inspectorate in the Libertador Municipality of the Federal District, dated 7 January 1988, in which it ordered the enterprise "The Daily Journal C.A." to discuss the draft collective agreement submitted on 30 October 1987 by the National Trade Union of Press Workers (SNTP).

&htab;28.&htab;The Committee notes with interest that the Labour Inspectorate ordered the reinstatement of the two trade unionists dismissed by the enterprise "The Daily Journal C.A." because of the commencement of collective bargaining by the National Trade Union of Press Workers. The Committee hopes that the decision of the Labour Inspectorate will be followed in practice and that it will receive confirmation that the two workers in question have been reinstated. The Committee also notes with interest that the administrative authority, in the second instance, upheld the order that the above-mentioned enterprise should discuss the collective agreement submitted by the trade union.

&htab;29.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

&htab;30.&htab;Complaints of infringement of freedom of association were submitted against the Government of Spain by the General Union of Workers (UGT) and by the Trade Union Confederation of Workers' Committees (CCOO) in communications dated 5 and 6 October 1988. The UGT sent the ILO additional allegations on this matter in communications dated 6 October and 18 November 1988 and 10 March 1989. The CCOO sent further information on 7 November 1988. The Government furnished its obervations in a letter dated 9 March 1989.

&htab;31.&htab;Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;32.&htab;In its initial complaint, the UGT claims, in relation to a signed agreement between the Ministry of Labour and Social Security and the Democratic Union of Pensioners concerning the revaluation of social security retirement pensions and other pensions for 1989, that the Government has made use of a non-union association - the aforementioned "Democratic Union of Pensioners" (UDP) - to cut off discussions that were taking place with the most representative unions. The UGT maintains that this demonstrates total disregard by the Government of the lawfully established right of representativity and collective bargaining.

&htab;33.&htab;The CCOO explains that, following the agreement between the Government and the UGT and CCOO reached at the end of July 1988, the Government convened the majority unions (CCOO, UGT and ELA-STV) at the end of September for negotiations on increases in the social security retirement pensions and other state pensions for the year 1989. However, in addition to the legally constituted and majority unions, the Government also convened the UDP which is not a trade union and has not held trade union elections so that its level of representativity cannot be determined. According to the CCOO, this association is concerned only with recreational and cultural activities for pensioners. Under Spanish trade union law, pensioners do not have the right to form trade unions but can join already existing ones: according to section 3 of the Basic Act on freedom of association, workers who have retired from occupational activity may join trade union organisations that have already been formed but may not set up trade unions to protect their particular interests, without prejudice to the possibility they have of establishing associations in accordance with special laws. Nevertheless, a few days after the negotiations had begun - that is to say on 17 September 1988 - the Government signed an agreement concerning pension increases for 1989 with the UDP alone, despite the opposition of the majority unions CCOO, UGT and ELA-STV.

&htab;34.&htab;The CCOO denounces the discriminatory attitude of the Government, considering that the latter thus accorded representativity to a non-union association rather than to the legally constituted majority trade unions, contrary to the terms of ILO Convention No. 98.

&htab;35.&htab;The UGT refers to the promises made by the Government, which had undertaken to negotiate with the social partners the increases in the social security and other state pensions for 1989. It lists the specific proposals made by the Government to the UGT on 16 September 1988 - the eve of the signing of the agreement with the UDP - and gives a detailed description of the agreement in question:

- proposals made by the Government to the UGT on 16 September : assistance pension: 20,000 pesetas per month; age: 66; comparison of the minimum pension with the minimum inter-occupational wage: over two years; revaluation: 5.45 per cent;

- agreement signed with the UDP on 17 September : pension: 19,450 pesetas per month; age: 67; comparison of the minimum pension with the minimum inter-occupational wage: over three years; revaluation: 5.35 per cent.

Once the agreement had been signed, states the UGT, the Government stepped up by two points the estimated figure for inflation for 1988, namely 3 per cent, which had been taken as a basis for the negotiations; a new estimate for the year was set at 5 per cent which, according to the UGT, explains the haste with which the agreement was signed, calls into question the good faith of the administration and illustrates the serious threat to the pensioners' purchasing power.

&htab;36.&htab;Like the CCOO, the UGT denounces the non-union character of the UDP, which is merely a group of associations of pensioners, which associations, for tax purposes, are stated to be run in the public interest. According to its rules, the UDP is totally independent "of the Government, the political parties, the trade union confederations", etc. (articles 3, 4 and 5 of its rules) and is not subject to the obligation stipulated in the Basic Act on freedom of association whereby trade unions are required to hold periodic general elections accrediting their representativity in the field of their trade union activity. Furthermore, still according to the UGT, the UDP is financially dependent on the State, which pays for 80 per cent of its activities since, under its rules, the contributions paid by its members are purely symbolic (1 peseta per contributor per month) and may not exceed a total of 500,000 pesetas.

&htab;37.&htab;The UGT describes the previous negotiations which took place on this subject and explains the relevant legislative provisions, namely Royal Decree No. 38 of 16 November 1978, followed by Royal Decree No. 3064 of 22 December 1978 in respect of the institutional management of the social security scheme. Under the terms of the former Decree, the management of the National Health Institute and of the National Social Services Institute was supervised at both state and local level through bodies on which the various trade unions, employers' organisations and the Government were equally represented. Royal Decree No. 3064 set up general supervisory boards comprising, for the various social security and assistance bodies, 13 trade union representatives (in proportion to their representativity), 13 representatives of the most representative employers' organisations and 13 representatives of the administration.

&htab;38.&htab;Furthermore, the UGT goes on to say that in past years the Government either determined increases in social security pensions unilaterally or submitted the issue to collective bargaining. In the latter case it did so with the most representative trade unions and it is only in the course of the past two years that it has convened the UDP to the negotiating table. It is also the first time it has signed an agreement with this association. Under the previous circumstances, the parties directly involved in both the negotiations and the agreements were the most representative trade unions and not the UDP or any other association or union. The UGT stresses the fact that the UDP should never have been convened on an equal footing with the CCOO and itself since this association does not meet the conditions of greatest representativity which characterise these trade union organisations.

&htab;39.&htab;With the voluminous documentation appended to its complaint, the UGT encloses a cutting from the newspaper "Ya" dated 22 September 1988, according to which the UDP comprises 40 associations throughout Spain with 650,000 members who pay a contribution. Still according to the press cutting supplied by the UGT, the President of the UDP, Nicolas Malo, stated that his association came into being in the 1960s, under the Associations Act, born of the concern of people who had been militant in various political and trade union fields and who now were engaged in cultural and leisure activities.

&htab;40.&htab;In conclusion, the UGT considers that the Government has undermined the right of trade union representation and the right of collective bargaining which are protected by Conventions Nos. 87 and 98. The UGT maintains that the Committee on Freedom of Association - on the subject of the right of trade union representation - has on several occasions stressed the priority to be given to representative organisations of workers over groups of workers who are not organised in trade unions; in this respect it cites the Collective Agreements Recommendation, 1951 (No. 91), which gives priority, as regards one of the parties to collective bargaining, to representative workers' organisations and does not mention representatives of non-organised workers except in the absence of the former organisations. As regards the right to collective bargaining, according to the UGT, the Committee on Freedom of Association has on many occasions emphasised the need to protect this right in respect of other associations, stating that appropriate measures should be taken to ensure that workers and employers enjoy the free exercise of this trade union right, even vis-à-vis other organisations and third parties.

&htab;41.&htab;In a subsequent communication, dated 18 November 1988, the UGT states that it has lodged an appeal before the competent national courts against the agreement signed by the Ministry of Labour and Social Security and the UDP and that it will keep the ILO informed of the outcome of the case. In a further communication, dated 10 March 1989, the UGT states that the Supreme Court ruled that the appeal in question, dated 10 November 1988, was receivable.

&htab;42.&htab;According to the Government, the agreement between the Ministry of Labour and Social Security and the Democratic Union of Pensioners (UDP), of 17 September 1988, is not a collective agreement and does not involve the right of collective bargaining. Consequently, it cannot be maintained that the right to collective bargaining of the most representative trade unions has been infringed by the said agreement since, according to the Government, Article 4 of ILO Convention No. 98 refers to the voluntary negotiation of workers' conditions of employment and not to consultation-negotiation on retirement pensions policy.

&htab;43.&htab;Furthermore, as regards the representation and defence of retired pensioners, Spanish legislation provides two channels: that of the trade unions and that of the associations of retired pensioners, neither having priority or preference over the other.

&htab;44.&htab;The authorities, and essentially the Government, in accordance with the legal system in force in Spain, have jurisdiction over the revaluation of pensions under the social security scheme as well as other pensions and state subsidies.

&htab;45.&htab;Still according to the Government, neither the Spanish Constitution nor the international treaties and agreements ratified by Spain, particularly those of the ILO, nor the national laws in force within the country stipulate the right of trade unions and/or other representative organisations of occupational or collective interests to intervene - even in an advisory capacity - in the annual determination of the revaluation of state pensions.

&htab;46.&htab;Nevertheless, on several occasions the trade unions, particularly the UGT and the CCOO, have been consulted by the Government at the time of determining the revaluation of social security pensions and assistance pensions. This consultation has at times been extended to include the UDP, with which the agreement of 17 September 1988 was signed.

&htab;47.&htab;The Government explains that the UDP is a legally constituted association and is very strong among retired pensioners. In both these respects it has the legal capacity to represent these pensioners and to intervene or participate in defending their private interests. It has not, however, the legal capacity to intervene to defend interests which are the lawful reserve of the most representative trade union organisations - which is not the case in the present matter. The Government adds, moreover, that the UDP can in no way be termed a "yellow" organisation nor accused of being dependent on the Government. It recalls furthermore that it made an offer to the UGT on 16 September which the latter did not accept. As regards the allegation made by the UGT that the agreement signed by the UDP is inferior to the offer made to the UGT, the Government states that this constitutes political and not legal criticism. According to the Government, the UGT itself states that the difference relates only to certain aspects; a comparison between the proposal made to the UGT on 16 September and the text signed by the UDP on 17 September confirms that the terms invoked concern only some of the clauses in the disputed agreement.

&htab;48.&htab;In conclusion, the Government states that the agreement in question in no way undermines trade union rights such as those established in ILO Conventions, nor does it infringe Spanish law on the subject, though this in any case would be a matter for the Spanish courts. The Government and the competent ministry have strictly respected the legal system in force as regards the revaluation of pensions and the consultations and negotiations that have taken place with the complainant trade unions. At all times both the Government and the UDP abided by the principles of freedom and good faith.

&htab;49.&htab;In the voluminous documentation appended by the Government to its reply, the Government encloses in addition to the rules of the UDP (which indeed show that this organisation is not a trade union), information on the establishment of this organisation after the death of General Franco, its pluralist, united, democratic, free and independent character, its aims of social, economic and political integration of older people, whom it seeks to keep in the mainstream of society, its composition, grouping numerous provincial federations throughout the country (about 40) and the increase in its membership over the years, i.e. from 20,000 in 1978 to 633,000 in 1988. The documentation also refers to all the claims made by the association since 1979 on behalf of older people in various respects concerning their living conditions, and to the numerous interviews, agreements and joint activities carried out between the UDP and the UGT, CCOO and other trade union organisations, both at the national and the European level.

&htab;50.&htab;The Committee observes that the complainants allege violation of the right of trade union representation and of the right to bargain collectively by the Government which, according to them, signed an agreement on the revaluation of social security retirement pensions and other pensions for 1989 with a non-union organisation, the UDP, in order to get out of the discussions that were taking place with the most representative trade unions.

&htab;51.&htab;The Committee also observes that the CCOO and UGT both admit that they had been convened to the negotiating table, together with the UDP, and that the Government had made the UGT an offer on 16 September 1988. The Government and the UGT are in agreement on the fact that the UGT did not accept the offer. On the other hand, another offer was made by the Government to the UDP, an association which - as the complainants themselves recognise - has a membership of over 600,000 retired persons whose private interests it defends. The agreement with the UDP was signed on the following day, 17 September 1988. The Government strongly denies that the UDP is a "yellow" association dependent on it and claims, on the contrary, that this association which represents retired workers plays an important role, by making claims not of a trade union nature (since indeed it is not a trade union organisation) in defence of the private interests of retired people.

&htab;52.&htab;The Committee notes that most representative trade union organisations had been consulted with a view to the signing of an agreement on the revaluation of social security retirement pensions, and that the Government signed an agreement with an association representing the interests of retired persons on a wide scale - since, according to available information, this association had a membership of some 633,000 persons in 1988. In these circumstances the Committee considers that there has not been any infringement of freedom of association in the present case.

&htab;53.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that, on the strength of the information in its possession, this case does not call for further examination.

&htab;54.&htab;In a communication dated 28 February 1989 the IOE submitted a representation against the Government of Panama, under article 24 of the Constitution of the ILO, concerning the application of Convention No. 87. The Government sent its observations in a communication which was received by the Office in February 1989.

&htab;55.&htab;Panama 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;56.&htab;The IOE alleges that Decree No. 26 of 28 March 1988 relating to the right to associate does not respect the obligations ensuing from Panama's ratification of Convention No. 87.

&htab;57.&htab;The IOE considers that this Decree:

- is not in conformity with Articles 2 and 7 of the Convention since it refuses to recognise an association or federation of employers grouping less than 50 per cent of enterprises in the branch of activity in question and prohibits both the registration and activities of any association that has not obtained prior recognition from the Minister of the Interior and Justice, any persons having engaged in activities before securing this recognition rendering themselves liable to prosecution (sections 3, 14, 29 and 30 of the Decree);

- is not in conformity with Article 3, paragraph 1, of the Convention since it unduly restricts the right of organisations of employers 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 (sections 10, 13, 16, 18 and 34, subsections 2 and 3, of the Decree);

- is not in conformity with Article 3, paragraph 2, nor with Article 4 of the Convention since it provides for the Minister of the Interior and Justice to exercise control at all times over employers' organisations (finances, documents, activities and administration) and empowers the said Minister to dissolve by administrative authority any association which he considers to be acting contrary to the law, to the Decree in question or to the rules of the association as, for example, if the latter supports - or on the contrary disapproves of - official action by the authorities (sections 24, 34, subsections 2 and 3, 36, 37, 38 and 40 of the Decree).

&htab;58.&htab;The Government states in its communication of February 1989 that section 1(2) of Decree No. 26 of 28 March 1988 establishes categorically that "Organisations or associations governed by special laws, such as labour organisations, co-operatives and farming settlements, shall be governed by their own specific provisions". Since trade unions or associations, whether of workers or of employers, are governed by a special law - the Labour Code - they do not come within the scope of Decree No. 26 of 28 March 1988.

&htab;59.&htab;The Committee notes the Government's statements that Decree No. 26 of 28 March 1988 applies neither to trade unions nor to associations of employers, which are governed by the Labour Code (which contains detailed provisions on the subject).

&htab;60.&htab;The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations, when it examined Decree No. 26 at its meeting in March 1989, confirmed that its scope did not extend to trade unions or to employers' associations. Like the Committee of Experts, the Committee concludes that since Convention No. 87 applies solely to organisations of employers and of workers (and not to other associations or organisations), the case does not call for further examination.

&htab;61.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

&htab;62.&htab;By a communication of 26 August 1987, the Association of Junior Hospital Doctors in Denmark (AJHD) presented a complaint of violations of freedom of association against the Government of Denmark. It sent additional information and allegations in letters dated 1 October 1987, 8 February 1988 and 13 February 1989. The Government sent its observations on this case in communications dated 10 December 1987, 22 November 1988 and 17 April 1989.

&htab;63.&htab;Denmark 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;64.&htab;In its communication of 26 August 1987, the AJHD alleges that the Government violated Conventions Nos. 87, 98 and 151 when the Danish Parliament passed, on 8 May 1987, Act No. 246 "on changes in the work scheduling for junior doctors in the public health service and on renewal and extension of their collective agreements" (a copy of the Act is supplied). The Act provides that all collective agreements between the Association of County Councils, the Copenhagen City Authority, the Frederiksberg City Authority and the Danish Ministry of Finance as employers on the one part and the AJHD on the other are extended from 1 April 1987 until 1 April 1989, with certain terms (namely, average weekly hours of work and special salary adjustments) extended until 1 April 1991. In addition, under sections 6 and 7 of the Act, the Minister of Finance shall establish a board having equal representation of the parties to determine certain aspects of the working conditions (such as work, timetables, remuneration of doctors on call duty from their residences); the board was to decide these outstanding questions before 1 September 1987, failing which an umpire would be nominated by the board to settle them with binding effect, in other words, through compulsory dispute settlement procedures.

&htab;65.&htab;The complainant explains that the Act was adopted in order to stop an ongoing legal strike by the AJHD in some specifically designated departments and wards of certain public hospitals. The strike, which had been duly notified in accordance with the law, was originally postponed by the Conciliation Service. When the Public Conciliator, however, failed to help in achieving a solution acceptable to all parties, the AJHD decided to exercise its lawful labour rights and went ahead with the planned strike.

&htab;66.&htab;According to the complainant, the strike, which was only allowed to last for 22 days, did not affect emergency services and could not in general be said to create a public emergency situation, inasmuch as the AJHD had agreed to maintain emergency services. In the "General Agreement between the Association of County Councils, the Copenhagen City Authority, the Frederiksberg City Authority and the Ministry of Finance on the one part and the Association of Junior Hospital Doctors on the other part" concerning emergency services during the lawful strike, dated 9 March 1987 and a copy of which is supplied, the parties agreed, inter alia, that: in case of disasters all the medical personnel covered by the work stoppage can be called in; and in vital or other situations of urgency the number of employed junior hospital doctors determined by local agreements can be increased for a short period by agreement; and those junior hospital doctors at work may perform the medical work that is vital , that cannot be postponed or is required so as to avoid irreversible health consequences. The complainant states that this agreement shows that out of concern for the general public and the patients involved, it chose not to use its lawful right to strike to the full extent possible. Moreover, the AJHD adds that a large proportion of all hospital doctors in Denmark are civil servants, and as such are not allowed to strike; these civil servants were, therefore, able to augment all emergency services during the strike by the junior doctors.

&htab;67.&htab;The AJHD considers that the Danish Government chose to end its lawful strike in contravention of international ILO obligations, not to help patients in life-threatening situations, but solely in order to alleviate some potential long-term effects of the strike, in particular the slow building up of queues/waiting lists of people waiting to get medical attention of a non-acute character.

&htab;68.&htab;The complainant stresses that the forced renewal and extension of the collective agreements to which it was a party was a unilateral government measure which leaves it no opportunities to exercise its right to negotiate fully and the legislative intervention in effect prevents the junior doctors from exercising their right to strike. The AJHD particularly regrets that it was not consulted in advance of the government intervention and had no opportunity to exercise any influence upon the position of the Government.

&htab;69.&htab;According to the complainant, the Danish Government already has a disreputable record of intervening in the collective bargaining process, and other unions have been subjected to such intervention during 1987. This practice has recently led to criticism from the ILO: the AJHD refers to the complaints lodged with the ILO in 1985 by the Danish Federation of Trade Unions (LO) and the Danish Salaried Employees' and Civil Servants' Confederation (FTF) (Case No. 1338) which gave rise to criticism of the conduct of the Danish Government with respect to its international obligations under ratified ILO Conventions. That case concerned the third occasion of government intervention in matters regulated by collective agreements in less than three years, and, according to the complainant, closely resembles the measures which form the basis of the present case. The AJHD quotes the Committee on Freedom of Association's 243rd Report, which was approved by the Governing Body of the ILO in March 1986 (paragraph 246):

The Committee hopes that in the future, no similar measures will be taken to interfere with free collective bargaining or to restrict the right of workers to defend their economic and social interests through industrial action.

&htab;70.&htab;The AJHD points out that this decision from the ILO Governing Body apparently had no effect on the Government because it intervened again, this time in the junior doctors' dispute. Given the very serious and urgent nature of this case, states the complainant, it requests the Committee to consider sending an ILO representative to Denmark to examine, in direct contact with the social partners and the Government, government intervention in free collective bargaining.

&htab;71.&htab;On 1 October 1987, the complainant supplied further information on the proceedings before the board set up by Act No. 246 to decide on certain disputed provisions of the extended collective agreement before 1 September 1987. It states that after ten meetings the board found on 31 August that it was not possible to reach any decision, nor was any agreement possible on the nomination of an umpire. The Act provides that in such a deadlock situation, the Conciliation Service shall nominate the umpire. According to the AJHD, on 15 September it was informed who had been nominated as the umpire, but as at the date of its communication, it had not yet been contacted by the umpire for talks on the outstanding issues.

&htab;72.&htab;In its communication of 8 February 1988, the complainant challenges statements in the Government's reply (a copy of which had been sent to it by the Government), in particular that the strike was responsible for the serious problems facing patients. It also disputes the Government's description of the events leading up to the strike. First, the AJHD points out that, in 1981, junior hospital doctors entered into an agreement - essentially different from the earlier collective agreement - reducing at the request of the employers the schedule of working hours to the same length as worked by other public servants. According to the complainant, the introduction of the new system of working hours gave rise to a number of problems during a transitional phase, but as the new rules were incorporated in schedules, they worked better and better. During the last few years there had also been a formalised co-operation between the National Health Board, the doctors and the employers on the introduction of various training experiments, and on a new planning of work schedules. These were changes which were possible to effect within the framework of the collective agreement of that time.

&htab;73.&htab;Secondly, the AJHD states that any problems of this nature cannot warrant intervention by statute. As outlined in the Government's reply, the intervention meant that salaries rose to a level corresponding to the level agreed for other academic staff in public employment, that working hours were reduced, and that a number of other issues were referred for resolution to a board with equal representation of the parties. This board - as noted earlier - failed to reach agreement, and on 30 December 1987, an umpire made his award (a copy of which is provided). The award is considered by the AJHD to be an extensive granting of the employers' demands for amendments to the collective agreement. One of its consequences is that junior hospital doctors on call duty have to attend to more than one ward, which can in no way improve, for example, the continuity in the treatment of patients. The award also means that the employers will be able to remunerate part of the call duty by monetary payment instead of having it credited to the individual's working hours, as had been done in the past. This makes the reduction of working hours an illusion.

&htab;74.&htab;According to the complainant, irrespective of whether these amendments may be considered expedient, a government's wish for amendments to a collective agreement cannot warrant the discontinuation of a strike, if this strike has been so planned as to prevent serious consequences to patients, a situation which had been secured specifically by agreements between the employers and the Association of Junior Hospital Doctors.

&htab;75.&htab;In yet a further communication, dated 13 February 1989, the AJHD presents supplementary comments on two aspects of its complaint: (1) the narrow terms of reference of the board set up by Act No. 246 (section 6) to decide on certain disputed provisions failing which an umpire's settlement was required; and (2) the measures taken to ensure hospital services during the limited strike in April/May 1987.

&htab;76.&htab;First, the AJHD stresses that the provision concerning dispute settlement set out in Act No. 246 conformed exactly to the demands made by the employers during collective bargaining and, unfortunately, attempts made during the adoption of the Act to broaden the board's scope failed. The complainant thus considers that the board was not in a position to conduct meaningful negotiations and, despite its joint composition, was biased in favour of the employers. Added to this, states the AJHD, when the board failed to reach agreement and an umpire was called on to assist, his award of 30 December 1987 made considerable concessions to the employers as regards those issues listed in section 6 of the Act. It states that to date most employers have still not implemented the umpire's award in relation, for example, to reducing the workload of junior hospital doctors.

&htab;77.&htab;Secondly, the AJHD stresses the limited scope and conditions of the strike it called. It explains that only 555 of a total of 8,091 doctors employed in Danish hospitals were selected to take part in the strike. It repeats that the 9 March 1987 "General Agreement" provided for minimum services - to be agreed upon with the AJHD - in cases of disasters, situations of urgency and the performance of vital medical work that could not be postponed. In total, 17 individual agreements were concluded at strike-bound hospitals between the hospital owners and the AJHD concerning the number of junior doctors appointed to serve during the work stoppage. The "General Agreement" also provided for these minimum services to be increased if required and this in fact happened at several hospitals. According to the AJHD, all requests from the hospital owners for a greater number of serving doctors were met by the AJHD. The complainant adds that, both in 1987 and previously, Danish Governments have shown that they respect, and themselves make active use of, the rights of labour and management to take action in connection with collective bargaining. For example, in 1987 the Government accepted the entry into effect of the lawfully called strike although it could have tabled legislation immediately banning this action. Also, in 1981 the Government as an employer locked out almost 1,200 junior hospital doctors of the then total of 6,600.

&htab;78.&htab;In its communication of 10 December 1987, the Government describes the events leading up to the passage of Act No. 246. It states that the negotiations between the Association of Junior Hospital Doctors and its employers (the Ministry of Finance, the Association of County Councils, the municipality of Copenhagen and the municipality of Frederiksberg), including the negotiations assisted by the Public Conciliator, failed to lead to results. A strike then took place and lasted for 22 days.

&htab;79.&htab;The Government considered that a protracted strike in the hospitals would have serious consequences for the patients and the operation of the hospitals, for example, patients on waiting lists for hospital treatment were particularly seriously hit. The inevitable consequence was that this group of patients, who were already in a difficult situation, experienced increasing uncertainty and insecurity and painful conditions were prolonged. The Government refers in this connection to the ILO "Digest of Decisions on Freedom of Association" which includes the hospital sector as an "essential service" where restrictions on the right to take industrial action are acceptable under certain conditions.

&htab;80.&htab;The Government points out that the dispute between the AJHD and its employers was not a dispute about pay questions, but about the organisation of the work and the working time rules, which normally form an integral part of collective agreements. The background to this situation was that conditions concerning the organisation of working time in this sector had developed in an undesirable direction over recent years. The Government explains that the rules in the collective agreement (which were originally intended to be training rules) had come - in combination with the other rules of the agreement on working time such as the rules on stand-by duty - to operate as a staffing regulation. Gradually, it also became very difficult to ensure the necessary and proper training of doctors. In addition, a specialist advisory body, the National Health Board, had declared that in the longer perspective there would be problems in maintaining the quality of the treatment of the patients; it strongly emphasised the need for a redirection of this development, both to the Government and to the regional hospital authorities.

&htab;81.&htab;The Government thus found it necessary to do something to solve these problems in a way covering long-term perspectives, which both doctors and hospital-owners could accept, so that disputes would not arise in connection with future negotiations. On the basis of these considerations, the Government found it necessary to intervene in the dispute by passing legislation. On 5 May 1987 the Minister of Labour met with representatives of the Association of Junior Hospital Doctors and at this meeting he presented the bill to these representatives. The Act adopted renews the collective agreement concerning pay and other working conditions for junior hospital doctors (concluded between the Ministry of Finance, the Association of County Councils, the municipality of Copenhagen and the municipality of Frederiksberg on the one side and the AJHD on the other), and prolongs six other agreements concluded between the same parties which, in respect of certain pay and working conditions, refer to the collective agreement for junior hospital doctors.

&htab;82.&htab;The Government states that while the pay segment of the agreements was not in dispute, the reorganisation of working time - based on the reasons outlined above - was. The Act therefore provided that a joint board shall be set up with a view to deciding these disputed matters so that the parties may, to the largest possible extent, influence the decision. If they failed to reach majority agreement before 1 September 1987 on all matters, an umpire was to be appointed to make the final decision. The Government recognises that, unfortunately, the joint board failed to agree on the disputed matters and an umpire was therefore appointed by the Conciliation Board. The umpire had meetings with the parties during the last two weeks of October 1987 with a view to laying down the further procedure.

&htab;83.&htab;In view of all the information supplied, the Government is of the opinion that there is no need for a direct contacts mission to visit Denmark.

&htab;84.&htab;In its letter of 22 November 1988, the Government first refutes the complainant's assertion that it was not the strike that was responsible for the serious situation facing patients. On this point, it supplies statistics from the Ministry of Health to show the improvements over recent years in hospital admissions reducing waiting list numbers and to show the drop in the average waiting time for certain operations (e.g. cataracts, sterilisation and varicose veins). According to the Government, the results of the various measures to reduce hospital waiting lists were seriously threatened by the strike in the spring of 1987 as it was in these very fields that the treatment of patients was jeopardised. The legislative intervention was a prerequisite for a positive development in this field in 1987. The fact that the agreements which had been concluded guaranteed the treatment of patients with acute diseases does not change the fact that a protracted strike would have had serious consequences for patients on waiting lists. In other words, the fact that agreements were concluded between the employers and the Association of Junior Hospital Doctors exempting certain fields from the work stoppages was immaterial since the agreements concerned emergency duty with a view to treatment of acute cases and they were thus without importance for the majority of the patients on the waiting lists. The agreements could not make legislative intervention unnecessary.

&htab;85.&htab;Secondly, the Government contests the Association of Junior Hospital Doctors' denial that the legislation was necessary in order to ensure the quality of the treatment of the patients and the training of junior doctors. According to the complainant, there had been some transitional problems which were solved through a better planning of work and the introduction of experiments with the training of doctors. The Government, however, maintains that the quality of training of doctors was at risk and, in this connection, it refers to a study undertaken by the Association of County Councils in Denmark of the average physical presence of junior doctors at the hospital wards. This study showed that the average physical presence at the wards varied from 25 to 36 hours for a 39-hour week. The Government adds that the doctors are in all cases paid for more than 39 hours per week (due to provisions in the agreement concerning inclusion of stand-by duty in the calculation of working hours).

&htab;86.&htab;Thirdly, as regards the complainant's criticism of the award made by the umpire on 30 December 1987 as "an extensive granting of the employers' demands", the Government considers that it is still premature to say anything about the consequences of the award. However, on a preliminary basis, the Government reports that the Ministry of Health finds that the basic problems in connection with the agreement applying to junior doctors have not been solved. The Ministry of Finance points out that the question of common duty arrangements for several wards is a medical question in the sense that duty teams must comply with responsible medical standards, but it is up to the hospital administrations and not the junior doctors to decide these matters. It is actually said in the award that the hospital authorities must - prior to introducing common duty arrangements between several wards - obtain a medical opinion from the committee of chief doctors at the hospital concerned and must also give the Association of Junior Hospital Doctors the possibility of stating its views.

&htab;87.&htab;Against this background the Government maintains that the dispute with the Association of Junior Hospital Doctors had ended in a deadlock. There was no prospect that this strike could lead to a solution to the serious situation in the hospitals. The strike meant that the possibility of offering treatment to the many patients waiting for operations became more and more unpredictable. It thus considers its action was justified by the human suffering which, as a consequence, would have been imponderable.

&htab;88.&htab;In a further communication of 17 April 1989, the Government replies to the complainant's most recent letter expanding on two aspects of the case, namely (1) the terms of reference of the board set up by Act No. 246; and (2) the scope and conditions of the strike. First, the Government states that the issue of the organisation of work in hospitals has given rise to disputes for many years but has always been dealt with in doctors' collective agreements and will continue to be so (because the arbitrator's decision in the present case forms an integral part of the various collective agreements). The Government claims that in drafting the proposed legislation it aimed to restrict the scope of intervention as much as possible; thus section 6 of the Act is confined to three specific matters for which a solution was so important. The Government is astonished that the doctors now consider that other matters should have been covered by the Act as well. It stresses that the Act itself did not state how these issues should be solved, but left it to the parties to solve them, failing which an independent arbitrator was to have the final decision. It adds that unfortunately neither the employees nor the employers were satisfied with that decision.

&htab;89.&htab;Secondly, the Government is of the opinion that it is not of decisive importance how many doctors participated in the strike; the important point is its consequences on the health of the population. It stresses that, at the time when the Government decided to intervene, the strike had been running for 22 days and there was no prospect of the parties themselves finding a solution. It continues to recognise the doctors' right to free collective bargaining and collective industrial action. It stresses that this particular intervention was justified by the specific circumstances of the case, was of limited scope and duration, and was necessary to stop a protracted strike which led to human suffering.

&htab;90.&htab;The Committee observes that the facts of this case are not in dispute: both the complainant and the Government explain that on 8 May 1987 Act No. 246 "on changes in the work scheduling for junior doctors in the public health service and on renewal and extension of their collective agreements" put an end to a 22-day strike in the hospital sector and prolonged certain terms and conditions of employment of junior doctors for a two- or four-year period.

&htab;91.&htab;The parties to this complaint do disagree, however, on certain aspects of the circumstances leading to the adoption of Act No. 246. In the first place, the complainant, on the one hand, alleges that there was no advance consultation with it on this government intervention; the Government, on the other hand, states that on 5 May the Minister of Labour met with representatives of the AJHD to show them the Bill in question.

&htab;92.&htab;The Committee has said in the past [see, for example, 202nd Report, Case No. 949 (Malta), para. 275] that while the refusal to permit or encourage the participation of trade union organisations in the preparation of new legislation or regulations affecting their interests does not necessarily constitute an infringement of trade union rights, the principle of consultation and co-operation between public authorities and employers' and workers' organisations at the industrial and national levels is one to which importance should be attached, in accordance with the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). In the present case, the Committee cannot but regret that there was only one meeting with the workers' organisation involved in the specific piece of legislation affecting the working conditions of its members.

&htab;93.&htab;Secondly, the complainant and the Government disagree as to the consequences of the strike during April-May 1987: the AJHD alleges that only 555 out of over 8,000 doctors took part, that only certain wards or departments of certain hospitals were affected and that full provision had been made for the continuance of minimum services and for emergency services during the strike (in a "General Agreement" signed on 9 March 1987 and in no less than 17 further agreements for various individual hospitals). The Government was concerned about the immediate suffering of patients on waiting lists as well as the long-term effects of a prolonged doctors' strike, and it wished to settle once and for all the question of the organisation of working time so as to avoid further industrial action in future negotiations.

&htab;94.&htab;In past cases the Committee has pointed out that the right to strike may be restricted or even prohibited in the case of public servants acting in their capacity as agents of the public authority, or in essential services in the strict sense of the term, i.e. services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. [See, for example, 236th Report, Case No. 1140 (Colombia), para. 144.] Under this criterion the Committee has considered that the hospital sector is an essential service [see, for example, 217th Report, Case No. 1091 (India), para. 443] where the supervisory bodies accept that government measures may restrict or prohibit strike action.

&htab;95.&htab;The Committee notes that the complainant argues that its agreement to the provision of extensive emergency services during the strike meets the ILO criteria on minimum services and thus removes these public hospitals from the scope of the definition of essential services. The Committee, however, is of the opinion that the very nature of public hospitals does not permit derogations from this important principle. The fact that some doctors, some wards and some services functioned during the strike does not change the fact that the functioning of other wards and services were jeopardised for a long period.

&htab;96.&htab;At the same time, the Committee would recall the principle that where the right to strike is restricted or prohibited in certain essential undertakings or services - being hospitals in the present case - adequate protection should be given to the workers concerned to compensate them for this limitation on their freedom of action. This could be done, for example, by providing adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see, for example, 236th Report, Case No. 1263 (Japan), para. 270]. The Committee notes in the present case that Act No. 246 (section 8) prohibits industrial action for the life of the extended collective agreements and (section 9) provides for settlement of issues concerning violation and interpretation of the extended collective agreements "in accordance with the customary industrial relations codes of practice covering the field in question". For those matters still in dispute when the Act was passed, sections 5, 6 and 7 provide for the creation of an equal representation/joint board to decide these matters before 1 September 1987 in default of which this board or the Conciliation Service shall nominate an umpire to decide the issues.

&htab;97.&htab;The Committee notes that, in accordance with the above-mentioned provisions of Act No. 246, during the last weeks of October 1987, an umpire appointed by the Conciliation Service (an independent government institution composed of three conciliators appointed by the Minister of Labour for three-year terms in accordance with the Conciliation in Industrial Disputes Act, 1934, as amended) did hold meetings with the parties in an attempt to settle the outstanding issues. His award, handed down on 30 December 1987, does not appear to completely satisfy all the parties (both the complainants and certain government ministries have voiced their concerns). It is not for the Committee to rule on the contents of that award (which concern technical questions such as the work timetables and remuneration of doctors on call duty from their residences). It is, however, for the Committee to verify whether the way that this form of compensation for the removal of access to industrial action complies with its principles.

&htab;98.&htab;Under the criterion referred to above, the Committee considers that both the general procedure for the settlement of disputes concerning the extended agreements and the specific procedure (joint board/independent umpire) created by virtue of sections 5 to 7 of Act No. 246 are adequate, impartial and speedy and involve the parties. As such they do safeguard the interests of the workers who are obliged to maintain industrial peace under the legislation in question.

&htab;99.&htab;The third aspect of this complaint centres on the allegation that Act No. 246 is yet another example of government intervention in voluntary collective bargaining. The Committee observes - as does the complainant - 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 both private and public sector collective bargaining processes. Although the pieces of legislation at issue in the earier cases [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 and 259th Report, Case No. 1443, paras. 163 to 197, approved in November 1988 and also referred to the Committee of Experts] are not called into question here, they contained very similar provisions. The Committee is therefore bound to refer the Government to the same fundamental principles upon which it based its criticisms of the Government's earlier interventions. These are that a basic aspect of freedom of association is the right of workers' organisations to negotiate wages and conditions of employment freely with employers and their organisations, and that any restriction on this right should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period; any restriction should be accompanied by adequate safeguards to protect the living standards of the workers.

&htab;100.&htab;In addition, the Committee would recall that Article 6 of Convention No. 98 permits the exclusion from this basic right of "public servants engaged in the administration of the State", a term which the ILO supervisory bodies have looked at in the light of the distinction to be drawn between civil servants employed in various capacities in government ministries or comparable bodies and other persons employed by the government, by public undertakings - such as public hospitals in this case - or by independent public organisations [see, for example, 236th Report, Case No. 1267 (Papua New Guinea), para. 596].

&htab;101.&htab;In this case, therefore, the Committee considers that the Association of Junior Hospital Doctors legitimately had enjoyed the right to negotiate the terms and conditions of employment of junior hospital doctors by means of collective agreements until Act No. 246 put an end to all possibility of negotiations for the life of the extended agreements, i.e. until April 1989 or April 1991.

&htab;102.&htab;Given the facts of the present case, it appears to the Committee that the government intervention went beyond the criteria set out in the above paragraphs concerning acceptable restrictions on the voluntary fixing of conditions of employment. The method used went beyond the extent necessary and a reasonable period by prolonging the terms of the agreements for two, and in some cases four years. In this connection, the Committee notes that no evidence was put forward to show that the Danish economy as a whole or the junior hospital doctor sector itself was faced with an emergency situation such as to justify intervention in voluntary collective bargaining. Moreover, it notes the Government's commitment to the principle of the doctors' right to free collective bargaining apart from this one particular intervention, which was repeated in the Government's most recent communication.

&htab;103.&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 statutory renewal and extension of collective agreements covering junior hospital doctors was not in conformity with the principle of free collective bargaining with a view to the regulation of terms and conditions of employment under Article 4 of Convention No. 98, ratified by Denmark.

(b) The Committee considers, however, that in the circumstances of this case the legislative intervention which put an end to the strike of the junior hospital doctors cannot be considered to be an infringement of the ILO principles on the right to strike.

&htab;104.&htab;The Committee has already examined this case and submitted interim conclusions to the Governing Body which were approved at its 241st Session, November 1988 (see 259th Report, paras. 679-708). The Government sent further observations on the case in a communication dated 16 February 1989.

&htab;105.&htab;Indonesia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;106.&htab;At its November 1988 meeting, the Committee noted that this case involved a general allegation by the International Confederation of Free Trade Unions (ICFTU) of restrictions on trade union rights in Indonesia based on the following specific criticisms of the industrial relations legislation: (1) ban on the right to organise in trade unions for all public servants, teachers and employees of government-owned or controlled corporations; (2) insufficient protection against anti-union discrimination and interference contrary to Articles 1 and 2 of Convention No. 98; (3) restrictions on collective bargaining contrary to Article 4 of Convention No. 98; (4) restrictions on the exercise of the right to strike.

&htab;107.&htab;As regards the first allegation which specifically concerned public servants, the Committee noted the Government's response that since conditions of employment for public sector employees are set by special laws and regulations, collective agreements as a trade union function do not apply. It also noted the Government's reference to the sole civil servants' association, KORPRI, as having a negotiating role between civil servants and their employer, the Government. While noting the Government's general assertion that the principles of freedom of association are contained in Indonesian statutes, the Committee regretted the lack of detailed information on KORPRI, in particular on the alleged influential role played in it by the authorities, evidenced by the fact that the Minister of Internal Affairs is Chairman of KORPRI's Central Board.

&htab;108.&htab;As regards the alleged denial of the right to organise in unions facing employees of government-owned or controlled corporations, of state enterprises and teachers, the Committee again noted the Government's general assertion that freedom of association exists but that it appeared that any associations formed could not pursue trade union objectives.

&htab;109.&htab;As regards Articles 1 and 2 of Convention No. 98, the Committee noted that the Committee of Experts on the Application of Conventions and Recommendations had been calling on the Government for many years to strengthen its legislative provisions against anti-union discrimination so as to accord protection to workers at the time of recruitment and during employment against prejudicial acts carried out by employers or interference by their organisations in the establishment of workers' organisations. While noting the Government's general denial of these shortcomings and its reference to the Pancasila philosophy for industrial relations, the Committee reiterated the Committee of Experts' request that more specific provisions be enacted to ensure full conformity with the requirements of Articles 1 and 2 of Convention No. 98.

&htab;110.&htab;As for the alleged restrictions on collective bargaining, the Committee noted that the Government supplied certain statistics on collective labour agreements and company regulations. However, it observed with concern that - despite KORPRI's potential involvement in negotiations - the Government had clearly stated that collective agreements were not applicable for public sector workers. The Committee recalled that, under Article 6 of Convention No. 98, only public services engaged in the administration of the State are not covered by the Convention's provisions.

&htab;111.&htab;Lastly, as regards the alleged restrictions on the right to strike, the Committee noted with concern the very extensive list of non-essential services and industries scheduled in Presidential Decision No. 123 of 1963 in which strike action is banned (including state-run agencies such as tourist hotels, department stores and the Ancol pleasure park). While noting the Government's claim that withdrawal of these services could be detrimental to human life and that strikes should only be used as a last resort, it recalled the principle that strikes may be restricted or prohibited in essential services in the strict sense of the term, namely, where an interruption would endanger the life, personal safety or health of the whole or part of the population.

&htab;112.&htab;On this same point, the Committee noted that the Government made no specific comment on the ICFTU's allegation that Act No. 22 of 1957 on the settlement of labour disputes sets up a system of compulsory arbitration which makes strikes impossible in practice, apart from stating that strikes should be used only as a last resort. It recalled its position on conciliation and arbitration procedures which are not agreed to by both parties to the industrial dispute, namely, that the substitution, through legislative means, of compulsory arbitration for the right to strike as a means of resolving labour disputes can be justified only in certain circumstances, in particular in 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).

&htab;113.&htab;On the basis of the Committee's conclusions summarised above, the Governing Body approved the following interim recommendations:

(a) As regards the alleged ban on the right to organise in trade unions applying to public servants and all state employees working in government-owned or controlled enterprises, and teachers, the Committee recalls that all workers, without distinction whatsoever, should enjoy the right to establish organisations to further and defend their interests.

(b) It requests the Government to supply more information on the activities of the KORPRI (the civil servants' association), the PGRI (the teachers' association) and any other associations set up for public and para-public servants to protect their interests, e.g. in collective bargaining, grievance procedures.

(c) The Committee requests the Government to review the legislative monopoly situation establishing KORPRI as the sole association for civil servants so as to permit civil servants to join organisations of their own choosing. (d) The Committee reiterates the observations of the Committee of Experts on the Application of Conventions and Recommendations as regards the legislative shortcomings for full observance of Articles 1 and 2 of Convention No. 98 and as regards the limits on collective bargaining inconsistent with Article 4 of the same Convention; it draws these aspects of the present case to the attention of the Committee of Experts.

(e) The Committee requests the Government to take steps for the amendment of Presidential Decision No. 123 of 1963 which contains a too broad list of services deemed to be essential, in which strike action is prohibited, but which go beyond the Committee's definition of essential services.

(f) The Committee requests the Government to supply more detailed observations on the allegation that Act No. 22 of 1957 on the settlement of labour disputes sets up a system of compulsory arbitration which in fact makes strikes impossible.

&htab;114.&htab;In a letter dated 16 February 1989, the Government repeats that freedom of association and collective bargaining in labour matters are fully respected in Indonesia since they are embodied in the Constitution and other legislation. It asks that full consideration be given to the fact that Indonesia is "now in the process of development towards the most suitable pattern" of applying these rights, especially because historical experiences have indicated that freedom of expression without full responsibility has resulted in huge problems which endangered the integrity of Indonesia as a State.

&htab;115.&htab;Turning to the Committee's specific recommendations made in November 1988, the Government explains that as regards the right to organise in trade unions of government or public enterprise employees, it fully secures the rights to organise for every citizen either to be or not to be a member of any organisation, including a trade union. But in spite of this, any public servant or employee of public enterprises should obey the existing regulations, one of which is the requirement of being a member of KORPRI ("Korps Pegawai Republik Indonesia" or Civil Servants' Corps). The Government states that those who do not intend to become a member of KORPRI should decide not to be a public servant or employee of public enterprises. Freedom of choice to be a member of government service or a state enterprise employee is a basic human right of every citizen, which is highly appreciated in Indonesia. It explains that KORPRI is a "corps" and cannot be considered as a workers' organisation or trade union, whereas the Teachers' Association of the Republic of Indonesia (PGRI) is a professional organisation which aims at developing education, improving professionalism of teachers, and contributing concepts for better educational development. According to the Government, members of PGRI may also become members of KORPRI, and members of KORPRI may also be members of PGRI. Likewise, there are members of the All-Indonesian Workers' Federation (SPSI) who are members of KORPRI and PGRI. Although KORPRI and PGRI are not trade unions as such, the protection of their members is their main duty and responsibility based on the Decision of the Central Board of KORPRI No. Kep. 50/K-X/PP/84 on the Organisational Structure and Working Procedures. The Central Board of KORPRI and its secretariat at all regional levels have established the Bureau of Employee Relations which is responsible for giving guidance, developing employee relations and settling any disputes among the members of KORPRI, in all the public enterprises owned by the central and regional governments. KORPRI has also set up a Bureau of Legal Aid (on the basis of the above-mentioned Decision of 1984) which is responsible for efforts and activities relating to legal assistance needed by KORPRI's members. There have been a lot of disputes settled satisfactorily by the KORPRI Bureau of Employee Relations.

&htab;116.&htab;As regards the particular situation of teachers, the Government states that protection by PGRI of its members' rights and interests against unfair treatment by superiors is ensured through the use of the principle of mutual understanding (brotherhood). This method is used because most teachers, schoolmasters, school inspectors and officers of the Department of Education and Culture are PGRI members. There have been cases where schoolmasters of elementary schools and a Board member of PGRI in West Java had been downgraded by the Head Provincial Office of the Department of Education and Culture and which were settled by PGRI leading to their rehabilitation to the previous ranks and positions. The PGRI Bureau of Legal Aid always takes action on such cases of unfair treatment, injustice, violence, etc.

&htab;117.&htab;Since these two organisations are not workers' organisations or trade unions, the Government states that it is impossible to negotiate towards or to conclude collective labour agreements for KORPRI and PGRI members. Conditions of work and salary of public servants are regulated by government regulations, and public enterprise employees are subject to government regulations or ministerial decrees, or to the legislation specifically issued for the enterprises concerned. However, it points out that in the formulation of company regulations for public enterprises, KORPRI representatives from the respective company are also involved in the discussions. In addition, it stresses that many employees of enterprises which are fully or partly owned by the Government are members of trade unions. For example, the General Labour Agreement signed on the one hand by plantation enterprises in Sumatra and on the other hand by the All-Indonesia Workers' Federation (the principal private sector trade union) in North Sumatra Province covers labour matters concerning plantation enterprises owned by the Government. Moreover, according to the Government, if an employee wishes to resign from membership of KORPRI and become a member of a trade union, he or she is entitled to do so in those enterprises fully or partly owned by the Government. For instance, the workers of PT. Semen Cibinong are organised in a trade union.

&htab;118.&htab;Regarding the observation made by the Committee of Experts on the Application of Conventions and Recommendations, particularly on Articles 1 and 2 of Convention No. 98, the Government states that it is applying these provisions, except in relation to employees of government and state-owned enterprises who have decided themselves to be members of KORPRI. It adds that Article 4 of Convention No. 98 is fully respected by the Government and many efforts have been made to promote and encourage collective bargaining and voluntary negotiations between unions and employers on conditions of work and terms of employment. One of these efforts is the publication of Ministerial Decree No. 01/MEN/1985 on the procedures to conclude collective labour agreements; other efforts have also been made to improve knowledge about and escalate the dissemination of information in favour of the wide use of collective labour agreements at enterprise level. In fact, states the Government, the development of collective labour agreements at enterprise level is one of the target priorities of national development in the field of labour policies.

&htab;119.&htab;As regards Presidential Decree No. 123 of 1963, which the Committee considers as inhibiting the right to strike of the unions, the Government points out that it was issued over 25 years ago and is no longer relevant to the current situation of the society. The Government indicates that the Decree established the detailed lists of governmental agencies, enterprises and development projects which were identified as vital at that period of time; at present, however, many of those governmental agencies, enterprises and development projects are no longer in operation. The number of workers employed in the areas listed in that Decree only amounts to about 170,000 persons. In any case, states the Government, industrial relations based on the spirit of brotherhood obviously do not see strikes as an urgent requirement.

&htab;120.&htab;Lastly, the Government points out that the right to strike is fully guaranteed by Act No. 22 of 1957 and Act No. 14 of 1969 in which the machinery for strikes is well laid down. In fact, strikes are continuously occurring despite their marked decrease from time to time. According to the Government, the recorded data concerning strikes over the last four years are: in 1985, 78 strikes; in 1986, 73 strikes; in 1987, 37 strikes; and in 1988, 36 strikes. These data evidence the fact that strikes still exist, even though industrial peace has significantly improved. The trend of strikes has been substantially decreasing due to the practice of mutual deliberation to obtain consensus, and the effective means of settling disputes has been felt to be of much help. The Government holds that compulsory arbitration does not exert coercion on the disputing parties to achieve the settlement, but is rather a means of finding an amicable solution based on the existing regulations and practices. Under the present system, the disputing parties in a bipartite situation will conduct negotiations by themselves to achieve an agreement and, if no solution is found after the government conciliator has assisted, the dispute can be filed with regional or national committee for labour disputes settlement.

&htab;121.&htab;On the first issue, the Committee observes with regret that, despite the Government's repeated reference to texts ensuring the right of every citizen to join or not to join any organisation, including a trade union, according to the Government's clear words, a very large section of the workforce in Indonesia does not have freedom to form or join a workers' organisation of its own choosing. The workers involved are government employees, and the Government indicates that they can only join KORPRI, a body "which cannot be considered as a workers' organisation or trade union" and which is translated into English as the "Civil Servants' Corps". At the same time, the Committee observes that, according to the Government, employees of public enterprises owned or controlled by the State do enjoy freedom to unionise.

&htab;122.&htab;The Committee notes that the texts referred to by the Government are worded very generally. For example, the 1945 Constitution provides, in article 28, that "Freedom of association and assembly, of expressing thoughts and of issuing writing and the like, shall be prescribed by statute"; Act No. 14 of 1969 on the Basic Provisions Respecting Manpower, in section 11, states that: "(1) All manpower shall have the right to establish and to become a member of a manpower union. (2) A manpower union shall be established in a democratic mannner" and in section 12: "A manpower union shall have the right to conclude a labour agreement with any employer" ("employer" meaning, according to the Elucidation which accompanies Act No. 14, public or private entities); and Ministerial Regulation No. PER-01/MEN/1975 on the Registration of Labour Organisations stipulates, in section 2, that "Workers' organisations which may register at the Department of Manpower [ ... ] are those taking the form of a federation of trade unions as meant in section 1(c) above, which is represented in at least 20 provinces and has a membership of not less than 15 trade unions as meant in section 1(b) above"; section 1 defines the various types of organisations as:

&htab;(a) labour organisation means an organisation voluntarily established by and for workers as a trade union or federation of trade unions;

&htab;(b) trade union means an organisation voluntarily established by and for workers consisting of units within a field of industrial activity which belong to a central body;

&htab;(c) federation of trade unions means a workers' organisation the membership of which consists of trade unions as meant in (b) above. [It appears from the most recent (1989) observation of the Committee of Experts on the Application of Conventions and Recommendations made under Convention No. 98 that Ministerial Regulation No. PER-01/MEN/1975 has been replaced by a 1987 Ministerial Regulation which apparently changes the registration procedures but not the definitions.]

&htab;123.&htab;It is thus clear that there is no specific ban on unionisation of public servants (and other government employees) contained in the legislative texts referred to by the Government and available to the Committee. However, the situation in practice, in the Government's own words, seems to be quite different and it follows that there is a violation of the basic freedom of association principle that all workers - without distinction whatsoever - should be able to form and join organisations of their own choosing.

&htab;124.&htab;Leaving aside for the moment the question of compulsory membership of KORPRI, the Committee must now examine the nature of workers' organisations existing in Indonesia for government employees, whether these bodies be called "corps" or "associations", in view of the Committee's previous decisions in similar cases. In one case, the Committee decided that registration as a society under the Societies Act of the country concerned of a civil servants' association did not guarantee to the workers concerned the right to be represented by a body to promote and defend their occupational interests [see 230th Report, Case No. 1189 (Kenya), paras. 679-688]. In another case where a government deprived a particular category of public service workers of their previously enjoyed right to belong to a trade union, the Committee found that the possibility for them to join "a departmental staff association" to be approved by the director of the employing institution did not satisfy the requirement that workers should be able to establish and join organisations of their own choosing without previous authorisation [see 234th Report, Case No. 1261 (United Kingdom), paras. 343-371].

&htab;125.&htab;In the present case, the Committee notes that, according to its basic statute, KORPRI has the following functions or activities:

(a) to encourage and initiate modernisation by performing constructive activities and efforts;

(b) to motivate improvement in the performance of public services;

(c) to advise and make recommendations to the Government concerning all matters relating to the aims and main tasks of KORPRI;

(d) to accommodate, analyse, and communicate the interests of its members in accordance with the government regulations and policies;

(e) to organise efforts and activities for the development and maintenance of the material and spiritual welfare of its members and their families. It also notes the Government's description of KORPRI's Bureau of Employee Relations and Bureau of Legal Aid, which appear to work successfully in settling disputes in general rather than labour disputes. In addition, from information available to the Committee, KORPRI's activities during the celebration of its 17th anniversary included hospital and orphanage visits, blood donations, family planning and drug abuse lectures, sports games and choir competitions [see Indonesian Observer of 24 November 1988]. The Committee concludes from this that KORPRI does not meet the requirements of the principle that all workers should have the right to form and join organisations of their own choosing to defend their occupational interests.

&htab;126.&htab;As for the other bodies for government employees which exist, for example, to cover teachers, the Committee notes that the Government describes the PGRI as a "professional organisation" which is "not a trade union as such". From information available to the Committee it notes that the objectives of the PGRI as set out in its Constitution are:

(a) to achieve the realisation of the ideals of the 17 August 1945 Proclamation of Independence of the Republic of Indonesia;

(b) to participate actively in Indonesian national development, especially in the fields of education and culture by giving assistance to the setting-up and management of the educational and cultural programmes in accordance with the government policy;

(c) to upgrade the attitude, quality and activities of the teaching profession and to find ways and means for better welfare of its members.

The Government's description of the PGRI's activities also shows that this association is a professional organisation which aims at developing education, improving the professionalism of teachers and contributing concepts for better educational development. In consequence the Committee considers that PGRI does not completely fulfil the functions of a trade union aiming at promoting and defending the interests of its members.

&htab;127.&htab;Turning to the monopoly situation held by KORPRI as regards all government employees (by virtue of Presidential Decree No. 82 of 1971), the Committee notes the further information supplied by the Government to the effect that civil servants can join other associations but must , if they choose employment in the public service, join KORPRI. This does not change the position stated at its earlier examination of this case. In November 1988, the Committee clearly pointed out that "a situation in which an individual is denied any possibility of choice between different organisations by reason of the fact that the legislation permits the existence of only one organisation in the area in which he carries on his occupation, is incompatible with the principles of freedom of association" [para. 701]. The ILO supervisory bodies have acknowledged that while it is generally to the advantage of workers and employers to avoid proliferation of competing organisations, a monopoly situation imposed by law is at variance with the principle of free choice of workers' and employers' organisations [see in this connection General Survey on Freedom of Association and Collective Bargaining , 1983, paras. 136-138].

&htab;128.&htab;The Committee would once again request the Government to review Presidential Decree No. 82 of 1971 so as to make possible the establishment of organisations to represent their occupational interests outside the established structure, which would not prevent KORPRI from continuing to play its welfare role as at present.

&htab;129.&htab;Secondly, as regards Article 4 of Convention No. 98 and the limited negotiating role available to the workers' organisations which exist for government employees and employees of public corporations, the Committee takes note of the Government's further description of how terms and conditions of employment are set in the public sector. The Committee can only regret that this information confirms its earlier understanding that both the legislation and practice are not in conformity with the Convention on this point. Since such a large segment of the wage-earning population (over half according to the ICFTU's allegations) is thus deprived of the right to bargain collectively, the Committee urges the Government to re-examine its legislation so as to recognise the right to bargain collectively to those public servants who are not engaged in the administration of the State (in accordance with Articles 4 and 6 of Convention No. 98). In its review, the Government should take special account of the Committee's jurisprudence which has held that teachers, administrative staff of national teaching services, the staff of national radio and television institutes, employees of the postal and telecommunications services and, more generally, employees of nationalised undertakings should enjoy the right to collective bargaining enshrined in Article 4 of the Convention [see Digest of Decisions , 1985, paras. 599-602 and 597].

&htab;130.&htab;On a related point, the Committee observes that in its most recent observation made concerning Article 4 of the Convention, the Committee of Experts continued its criticism of the level of bargaining available to private sector trade unions [bargaining is available only to registered federations and registration requires coverage of at least 20 provinces and 15 trade unions]. At the same time, however, it noted the Government's assurance that the legislation in question had been repealed and replaced. This Committee trusts that the Government will review the bargaining situation in relation to the Committee of Experts' current criticisms and that the examination will include the public employees' right to negotiate as set out in the above paragraph.

&htab;131.&htab;Thirdly, as regards Articles 1 and 2 of Convention No. 98 the Committee notes that, contrary to the Government's statement that KORPRI members are not protected by these Articles, Government Circular Letter No. Ed.1/DP/1978 of 22 February 1978 expressly extends protective legislation to employees of government-owned or controlled companies. It also notes that the Committee of Experts, in its most recent observation, again requested the Government to adopt more specific legislative protection against all acts of anti-union discrimination (Article 1) and against acts of interference by employers and their organisations (Article 2). As it is clear from the Committee of Experts' observation that legislation already exists covering several aspects of these Articles which, in turn, means that relatively simple legislative additions need be made, the present Committee considers that this aspect of the case should be followed up by the Committee of Experts.

&htab;132.&htab;Fourthly, the Committee notes that the Government acknowledges that Presidential Decree No. 123 of 1963 (containing a too broad list of enterprises and services in which strikes are banned) is out of date and at present only applies to about 170,000 persons. The Government should accordingly have no difficulty in repealing the text, or at least in amending the schedule of services so as to ensure that strikes are prohibited only in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest of Decisions , para. 394, and General Survey , para. 214].

&htab;133.&htab;Lastly, the Committee has carefully examined the further information supplied by the Government on the impact of Act No. 22 of 1957 on the incidence of strikes, and the provisions of the Act itself. It understands that the system in force for the settlement of labour disputes follows either of the following patterns:

(1) Both or either of the parties to a dispute, if the dispute is not referred to arbitration, requests in writing the aid of a conciliation officer to settle the dispute; if unsuccessful the officer refers the dispute to a tripartite regional settlement committee; its decision (which is binding and can be enforced through the normal judicial procedure for civil judgements) can be appealed by either party to the tripartite central committee for the settlement of labour disputes whose decisions are binding and enforceable if not reversed or suspended by the Minister of Labour on the grounds "that such action is necessary for the maintenance of public order or to protect the interests of the State".

(2) Both parties can refer a dispute to arbitration voluntarily or on the recommendation of a conciliation officer or regional settlement committee; once "legalised" (approved) by the tripartite central committee for the settlement of disputes, the arbitration award can be enforced in the same way as a decision of the central committee and is not subject to review. Fact-finding can be used as a subsidiary procedure in arbitration.

&htab;134.&htab;The Committee notes in this connection that sections 13 and 14 of Act No. 14 of 1969 provide, respectively: "Exercise of the right to strike, to demonstrate and to lock out shall be determined by legislative regulation" and "Standards relating to the termination of employment and the settlement of labour disputes shall be determined by legislative regulation". Under section 6 of Act No. 22 of 1957 on the settlement of labour disputes, if either party to a dispute intends to take "measures" (lock-outs or strikes) against the other party, notice (specifying, inter alia, a lack of co-operation over two weeks in negotiations involving the conciliation officer) must be given to the other party and to the chairman of the regional committee who must acknowledge this in writing within seven days of his receipt of the notice; only when the party concerned has received this written acknowledgement can the "measures" be taken. In addition, according to section 23 of the Act, it shall be unlawful for an employer or worker to take reprisals (or measures resembling reprisals) in connection with a dispute or during its settlement.

&htab;135.&htab;In view of the above description, the Committee concludes that industrial action may be taken only after bipartite consultations have failed and the regional committee informed. The total time-lag involved can be as long as three weeks, or even longer if bureaucratic procrastination intervenes between delivery of the advice notice and its actual conveyance to the hands of the chairperson of the regional committee. Any action attempting to circumvent this process incurs a penalty of three months' imprisonment or a fine. In addition to this, the Committee recognises that the parties face the risk of having a conciliated agreement overturned by the Minister or of having an unsatisfactory settlement imposed on them through compulsory arbitration against which they cannot appeal.

&htab;136.&htab;In the Committee's opinion, despite the criteria written into the Act concerning these two latter points, the situation is open to criticism. In the first case, section 17 provides that the Minister's discretion to overturn a conciliated settlement shall be taken only after consultation with the other Ministers whose departments are represented on the tripartite central committee for settlement of disputes, but the fact remains that he has full freedom to decide in the final instance if there is a need to maintain public order or protect the interests of the State. This discretion is too broad. Secondly, section 19(3) does provide that in the arbitration procedure, the parties themselves chose the arbitrator or members of the arbitration board, but this does not temper the fact that non-appealable arbitration can be forced on the parties leaving them without recourse to strike action. The Committee thus recalls that it accepts limitations on recourse to strike action only in the case of public servants acting in their capacity as agents of the public authority, or in essential services in the strict sense of the term (namely, where an interruption would endanger the life, personal safety or health of the whole or part of the population) or in cases of serious national crisis. While it takes due note of the fact that in the present case strikes are theoretically possible in the early stages of conciliation and a small number apparently take place in practice, it requests the Government to re-examine the legislation in question so as to ensure that workers' organisations may have recourse to the right to strike as a means of promoting and protecting the interests of their members.

&htab;137.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee considers that the Government should review the situation of government employees so as to ensure that, in practice, these workers - like workers in the private sector and employees of public corporations - have the right to form and join organisations of their own choosing.

(b) In particular, the Committee again requests the Government to review Presidential Decree No. 82 of 1971 so as to make it possible for public employees to establish organisations to represent their occupational interests outside the existing structure (KORPRI), which performs only a welfare role.

(c) Regretting the discrepancies existing between Article 4 of Convention No. 98 and the legislation and practice on collective bargaining - in particular the limitations on public sector negotiations and on the level of bargaining available to private sector trade unions - the Committee trusts that the Government will re-examine the bargaining situation in the light of the Committee of Experts' current criticisms since Article 6 of the Convention permits the exclusion only of public servants engaged in the administration of the State.

(d) The Committee requests the Government to take steps to repeal or amend Presidential Decree No. 123 of 1963 which, in the Government's own terms, is no longer relevant to the current situation in Indonesia.

(e) The Committee requests the Government to reconsider the compulsory arbitration system set up by Act No. 22 of 1957, particularly the problem of resort to strike action.

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

&htab;138.&htab;In communications dated 15 June and 28 July 1988, the National Federation of Peasant Farmers, Agriculture and Plantation Workers (NAFAPAW) presented a complaint of violation of trade union rights against the Government of Liberia. The Government sent its observations on the case in a communication dated 13 February 1989 and received at the ILO on 20 March 1989.

&htab;139.&htab;Liberia 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;140.&htab;In the initial communication dated 15 June 1988, which the NAFAPAW claims to be also filed on behalf of the National Agriculture and Allied Workers' Union of Liberia (NAAWUL) and the National Seamen's Ports and General Workers' Union of Liberia (NSP/GWUL), the complainant makes the following allegations:

(a) the Ministry of Labour has committed continuous, wilful and flagrant violations of trade union rights and democratic freedoms, which have disastrous effects on the operation and functioning of the Federation, and on the living and working conditions of the workers;

(b) for the past five years, the Ministry of Labour has maintained an "ugly and dangerous" policy contrary to the fundamental rights of workers, some of whom, in the agricultural field, have not received their pay for six, eight, even up to 16 months, and are forced to perform their duties without union protection;

(c) the Ministry of Labour has refused to recognise the NAFAPAW since 12 December 1986, the date of its establishment, even though, according to the NAFAPAW, it is in principle recognised by the Government;

(d) the Ministry of Labour has refused to recognise the National Agriculture and Allied Workers' Union of Liberia (NAAWUL) and its officials (the "White group"), duly elected on 18 January 1986, during that union's second national convention. In this connection, the NAFAPAW also blames the Ministry for recognising and using other named persons (the "Stanley group") as NAAWUL's officials; according to the NAFAPAW, criminal charges are currently pending against these persons.

&htab;141.&htab;In its further communication of 28 July 1988, the NAFAPAW alleges that the Ministry of Labour is using every possible tactic to make the component unions of the Federation pro-government organisations, with the aim of destroying the Federation. By way of example, the NAFAPAW mentions that a "convention" conducted on 16 July 1988 by individuals styling themselves as members of the NAAWUL was in fact a clandestine and undemocratic procedure held with the backing of the Ministry and financed indirectly by the World Confederation of Labour.

&htab;142.&htab;In its reply of 13 February 1989, the Government denies all the allegations contained in the second communication of the NAFAPAW (dated 28 July 1988). The Government states that it never used strategies to destroy the Federation, nor backed any union or former officers of any union to hold any convention. The Government further states it is only aware that the NAAWUL elected its leadership, and that those elected have been carrying on the union's functions. The Government adds it does not interfere in trade union activities because this is prohibited by section 4100 of the Labour Practices Law.

&htab;143.&htab;The Government further denies all the allegations contained in the initial communication of the NAFAPAW, adding that it is not even aware of the formation or existence of that Federation, since it has not filed its by-laws and constitution, as required by section 4100 of the Labour Practices Law. The Government also denies the existence of any "ugly and dangerous" policy contrary to the workers' fundamental rights, and maintains it is not aware of any agricultural workers who have not received their pay for the periods alleged by the complainant, or that any workers are forced to perform their duties without any union protection. The Government denies the existence of exploitation and forced labour in Liberia.

&htab;144.&htab;The Government denies that it has refused to recognise the NAAWUL, as alleged by the complainant, since indeed this organisation is recognised by the Government of Liberia whose records show, as members of the NAAWUL's executive, a list of persons different from those mentioned by the complainant. The Government adds that the present leadership of the union is in constant contact with the Ministry of Labour and that a member of the said union served as adviser to the Workers' delegates to the 75th Session of the ILO Conference. The Government submits it has not recognised Mr. David White and his group as leaders of NAAWUL because their names were never forwarded to the Ministry of Labour by NAAWUL's secretariat. Furthermore, the Government denies having knowledge of any NAAWUL's officials elected on 18 January 1986 (the "Mooney-White group"), and is only aware of the election held on 14 July 1988; those elected (the "Stanley group") are duly recognised by the Ministry of Labour.

&htab;145.&htab;The Government further denies having any intention to dismantle NAAWUL, or to use former officers of the union to the detriment of the workers. Finally, the Government stresses that the NAFAPAW does not have standing to present this complaint on behalf of NAAWUL and NSP/GWUL, because it has not filed its by-laws and constitution with the Ministry of Labour.

&htab;146.&htab;The Committee notes that the allegations in this case can be categorised under three headings. Firstly, the general allegation of trade union rights' violations (paragraph (a) above); secondly, the Government's "ugly and dangerous" policy which allegedly deprived some agricultural workers of their pay for periods up to 16 months (paragraph (b) above); and finally, an allegation that could be generally described as a problem of union recognition and/or inter-union rivalry (paragraphs (c) and (d) above). The complainant's subsequent communication, in fact, is a variation on this latter theme.

&htab;147.&htab;With respect to the first point raised by the complainant, the Committee is bound to note that this is only an extremely general allegation, to which the Government gave an equally general answer, which is totally unsubstantiated in the two communications submitted by the complainant, and does not call for further examination.

&htab;148.&htab;Concerning the second issue raised by the complainant, i.e. that the "ugly and dangerous" government policy had the effect of depriving certain agricultural workers of their pay for periods up to 16 months, the Committee observes that this is flatly denied by the Government. Here, too, the Committee is faced with two completely contradictory statements, without any specifics or evidence.

&htab;149.&htab;The third issue concerns a situation which could be termed as rather confused, at best. The Committee gathers from the documentation received that a power struggle has emerged within the National Agricultural and Allied Workers' Union of Liberia (NAAWUL) between two groups, one of which (the "Stanley group") is recognised by the Government as having been duly elected on 14 July 1988 as NAAWUL's executive. The other faction (the "Mooney-White group") claims it is the only legitimate representative of the workers' members of NAAWUL; the Government denies having knowledge of their election and states that their names were never forwarded to the Ministry of Labour. To complicate matters further, the Government denies the very existence of the NAFAPAW (which lodged this complaint), since it has not filed its by-laws and constitution; the Government challenges NAFAPAW's right to file this complaint on behalf of NAAWUL and NSP/GWUL, for the same reason.

&htab;150.&htab;The Committee has stated in many cases that it is not competent to make recommendations on internal dissensions within a trade union organisation so long as the Government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organisation. [See, for example, 217th Report, Case No. 1086 (Greece), para. 93.] In cases of internal conflict, the Committee has suggested different solutions to clarify these types of legal situations with a view to settling questions concerning the representativity of the union officials concerned (for example, vote of the workers or judicial procedures). In the present case the Committee considers that impartial procedures should be put in train to enable the workers freely to choose their representatives.

&htab;151.&htab;The Committee observes that some of the persons, groups and/or unions concerned in the present complaint were already involved in similar problems in Cases Nos. 1219 and 1410 (233rd and 259th Reports). In the latter case the Committee noted it was not for it to decide which group should represent the members of the union involved, but rather to examine whether there was government interference with the workers' free choice of union officers. This view applies here and such interference has not been established in the instant case. In fact, the Committee is faced with two contradictory versions, and is not in a position to comment conclusively on this aspect of the case.

&htab;152.&htab;However, the Committee strongly emphasises that those who stand to lose the most in such situations of inter-union rivalry are the workers, and that the uncertainty stemming from these power struggles should be resolved as quickly as possible in the best interests of all the parties concerned, in particular the workers.

&htab;153.&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 general allegations raised by the complainant do not call for further examination.

(b) The Committee considers that impartial procedures should be put in train to enable the workers freely to choose their representatives.

&htab;154.&htab;The complaint is contained in a letter from the Single Federation of Workers of Honduras (FUTH) dated 13 June 1988. The Government replied in a letter of 9 February 1989.

&htab;155.&htab;Honduras has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;156.&htab;The Single Federation of Workers of Honduras (FUTH) alleges in its letter of 13 June 1988 that, since May 1981, it has repeatedly but unsuccessfully been applying to the authorities to be registered and for its legal personality to be recognised, complying for this purpose with all the relevant legal requirements. The FUTH emphasises that this non-registration is a clear violation of Convention No. 87 and it attaches a copy of the applications it has been making to the Ministry of Labour since 1981.

&htab;157.&htab;In its letter of 9 February 1989, the Government states that by decision of 22 December 1988 it granted legal personality to the Single Federation of Workers of Honduras.

&htab;158.&htab;According to the Government's observations, the application for legal personality submitted by the FUTH in 1983 contained some anomalies, of which the Federation was duly informed. The organisation, however, did not respond until January 1987, when anomalies were again noted but which the FUTH agreed to amend. On 24 June 1987 the Department for Social Organisations of the Secretariat of State for Labour issued a ruling in favour of granting the Federation legal personality, of approving its statutes and of delivering the relevant official papers. Nevertheless, following an opinion by the legal adviser to the Secretariat of State for Labour within the framework of ministerial policy to prevent inter-union disputes, the Secretariat of State issued a ruling on 31 August 1987 according to which "on the basis of section 538 of the Labour Code, draft rules are to be drawn up empowering the applicant Federation to resolve definitively (without prejudice to the constitutional right to appeal for protection, called "amparo") any disputes that may arise between two or more federated organisations or between internal factions of any one of these federations; to this end the application is to be referred back to the Legal Department". On 26 May 1988 the Secretariat of State for Labour issued a further ruling whereby the FUTH was to be given a copy of the "draft rules" for it to decide whether to accept or reject them. It was not until 27 September 1988 that the FUTH expressed its agreement.

&htab;159.&htab;The Committee notes with interest the granting of legal personality to the Single Federation of Workers of Honduras, by decision of 22 December 1988. The Committee nevertheless observes that this legal personality was granted seven years after it had first been applied for; that the Government has furnished no observations on the reasons for not acceding to the application for legal personality submitted by the FUTH in 1981 (a copy of which is supplied by the Federation), the Government's explanations covering only the period 1983-88; and that the Government's version of the facts reveals considerable delays in dealing with the application, which delays in some cases were caused by the FUTH but also by the authorities. For example, the proposal to include in the rules a provision allowing for the settlement of inter-union disputes since the Labour Code does not require - it merely permits - the inclusion of provisions of this kind. Consequently, the Committee regrets the delays which took place in dealing with FUTH's application for legal personality, which without a doubt prevented this organisation from lawfully exercising its trade union rights for a long period of time.

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

(a) The Committee is pleased that the Single Federation of Workers of Honduras was granted legal personality after so many years.

(b) The Committee hopes that measures will be taken to speed up the procedure in respect of the granting of legal personality to trade union organisations so as to avoid undue delay.

&htab;161.&htab;By communications dated 27 July and 17 August 1988 the Federation of Christian Trade Unions (CNV) submitted a complaint of violations of freedom of association in the Netherlands. The Confederation of the Netherlands Trade Union Movement (FNV) and the Federation of Middle and Senior Staff Personnel (MHP) submitted complaints in the same terms by communications dated 27 July and 21 October 1988 (FNV) and 28 July and 29 November 1988 (MHP). The substance of the complaints was set out in a joint letter from the three organisations which was sent to the Office on 14 March 1988 for the attention of the Committee of Experts on the Application of Conventions and Recommendations.

&htab;162.&htab;The Government responded to the complaint in letters dated 17 October and 2 November 1988 and 16 January 1989.

&htab;163.&htab;At its meeting in February-March 1989 the Committee decided to adjourn its examination of this case until its next meeting, pending examination of the relevant legislation by the Committee of Experts at its March 1989 Session [262nd Report of the Committee, approved by the Governing Body at its 242nd Session, February-March 1989, paragraph 10].

&htab;164.&htab;The Netherlands has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;177.&htab;In their joint letter of 14 March 1988, the complainants set out their concerns about these legislative arrangements under five interrelated (and, to some extent, overlapping) headings:

- inconsistency with the principle of uniformity of ILO standards;

- denial of equal protection for the bargaining rights of workers in the national insurance and subsidised and market sectors;

- the practical application of the legislation;

- inadequate protection for the living standards of workers in the national insurance and subsidised sector; and

- the manner in which the consultative process has operated in practice.

&htab;187.&htab;In its letter of 17 October 1988 the Government recalls how sharp increases in labour costs in the mid-1970s caused it to intervene in the bargaining process in both the market and national insurance and subsidised sectors. It acknowledges that some of these interventions were not entirely consistent with ILO principles. However, it claims that subsequent changes to the Wage Determination Act of 1970 and the replacement of the "Temporary" Act by the WAGGS legislation mean that there is now full conformity with those principles in all sectors. In particular, it stresses that the WAGGS Act adopts a fundamentally different approach from its predecessors. According to the Government, the complainants have not taken proper account of this factor in their assessment of the new legislation.

&htab;188.&htab;The Government goes on to assert that in terms of adherence to ILO standards the 1985 Act must be judged by reference to its practical operation and not, as the complainants insist, by reference to its text. The Act regulates the competencies of Government. In determining whether it is consistent with the principles on freedom of association it is necessary to examine the manner in which those competencies are utilised in practice.

&htab;189.&htab;The Government claims that the Act creates absolutely no impediment to the conclusion of collective agreements in the national insurance and subsidised sector. The Government's involvement is largely confined to the parameter-setting process which precedes the direct negotiations between employers and unions. The fact that the parameters within which wage costs can increase is determined in advance of negotiations is not at all unusual. Just the same thing would happen in the private sector.

&htab;190.&htab;Once the parties have concluded their negotiations, they then notify the Government of the cost-implications of their agreement. If the costs remain within the pre-determined limit, there is no problem whatsoever. The agreement becomes operative, with retrospective effect, within six to ten weeks after notification. Indeed, the agreement becomes operative even if its costs exceed the predetermined limit, but in that case the Government may use the objection procedures set out in section 7 to convene talks involving itself and the parties. At this stage the parties may obviate the difficulties by curtailing the trend in costs, or by proving that the cost overrun does not have any adverse implications for the quality of service provided or for public spending. If the parties decide to press ahead with an agreement which does not conform to the pre-set parameters, then the Government has the power to order a freeze in accordance with sections 10 or 11 (whichever is appropriate).

&htab;191.&htab;The Government points out that what it terms the "ultimate remedy" has never been applied, and that policy "is and remains that the instrument should only be used in practice if effects to a serious degree are being passed on".

&htab;192.&htab;In 1987-88 the Government conducted a detailed review of the operation of the legislation. This was done in consultation with both employers and unions, and as indicated earlier, a copy of the report was sent to the Office in June 1988. According to this report, there have been only two instances where the Minister has even gone so far as to issue a formal notice of objection under section 7 (pages 139-140 of the report):

The first, dated 5 March 1986 was for the health care sector collective labour agreement 1985. It was prompted by the forecast of wage drift involved in restructuring salaries, with inadequate financial scope being available. Following the objection, there were talks with the parties. After the parties adjusted the forecast and created guarantees to prevent the impending overstepping, the statement of objection was withdrawn.

The second dates from 17 December 1986 and related to public libraries for 1986. The costs under this agreement exceeded the set limits by more than 0.5 per cent, creating a cumulative overshoot of 0.3 per cent in 1985. In the subsequent talks with the parties, it emerged that the overshoot amounted to around 0.7 per cent. This was ultimately financed by the parties from the amount available for 1987. There were also a number of situations where there was 'a very small overshoot of one or a few tenths of a per cent'. In these cases the parties were given a written warning that the overshoot must not lead to any 'serious encroachment' upon the level of service - with the implied threat that 'a notification of objection may follow if such small overshoots are repeated in the future'.

&htab;193.&htab;As regards the impact of the legislation on wage costs, the Review Report notes (page 41) that as of May 1985 the percentage gap between average pay in the national insurance and subsidised sector as compared with the market sector was estimated to be 13 per cent. In 1986 and 1987 the pay trend in labour agreements in the market sector was 2.4 per cent as compared with 1.2 per cent in the national insurance and subsidised sector. In other words, the gap was significantly widened during the first two years of the Act's operation. The Review Report leaves no doubt that had it not been for the legislation there would have been at least a partial catch-up of the gap (page 42):

In the course of consultations parties have indicated on more than one occasion that they wish to catch up on the backlog with the private sector.

&htab;194.&htab;Further to the question of conformity with ILO standards, the Government accepts that workers in the national insurance and subsidised sector are not "public servants" (Review Report, page 160). This means that their terms and conditions of employment "must be handled in such a way as to do justice to the principle of freedom of association" (ibid.). However, according to the Government, its role as paymaster for this sector means that it must (ibid.):

... indicate the financial limits. What funds can be made available and for what service. Conditions of employment must be set within these limits.

The system of parameter-setting and review established by the 1985 Act maintains a proper balance between these responsibilities as guardian of the public purse and the principles of free collective bargaining (Review Report, page 161):

In summary, the new Act recognises two phases. In the first, the Government, having listened to the employee organisations, decides in conjunction with the employers how much change in conditions of employment can be financed from public funds. In the second phase, the employers and employees negotiate on changes to conditions of employment. According to the Government (ibid.):

International treaties concerning collective negotiations relate to the second phase. The first phase is part of the Government's financial and budgetary policy.

&htab;195.&htab;Both the Committee of Experts and the Committee on Freedom of Association have consistently taken the view that it is not compatible with the principles on freedom of association for government approval to be a precondition of the conclusion and implementation of a valid collective agreement [see General Survey by the Committee of Experts , 1983, paragraph 311 and Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body , 1985, paragraph 635].

&htab;196.&htab;Both Committees have accepted that legislation "which permits the refusal to approve a collective agreement on grounds of errors of pure form" is not necessarily in conflict with the principles. However, if registration may be refused on grounds such as inconsistency with government policy then that would constitute a requirement of "prior approval", and would be incompatible with the principles. By the same token, a provision which enables a government to invalidate, or set aside, a concluded agreement because it is inconsistent with the Government's social or economic policy would also be regarded as incompatible with the principles.

&htab;197.&htab;However, as indicated above, the Committees have recognised that some degree of government interference in the bargaining process may be justified "for compelling reasons of national economic interest". To be acceptable, such interference should be imposed only as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers' living standards [ Digest , op. cit., paragraph 641]. The Committee would also point out that in cases where collective agreements contain terms which appear to conflict with considerations of general interest, it might be possible to envisage a procedure whereby the attention of the parties could be drawn to these considerations to enable them to examine the matter further, it being understood that the final decision thereon should rest with the parties. The setting up of a system of this kind would be in conformity with the principle that trade unions should enjoy the right to endeavour to improve, by means of collective bargaining, the conditions of living and of work of their members and that the authorities should abstain from any interference which might limit this right [see Digest , op. cit., para. 643 and General Survey , op. cit., para. 314].

&htab;198.&htab;The 1985 Act does not make the conclusion or implementation of a valid collective agreement in the national insurance and subsidised sector conditional upon prior government approval. In the opinion of the Committee there is, therefore, no inconsistency between the Act and the principles on this ground.

&htab;199.&htab;The Committee is also of the view that there is no inconsistency between the principles on freedom of association and sections 6 and 7 of the Act. Both the requirement that agreements be submitted to the Minister before they become operative, and the Minister's right to require the holding of further consultations appear to be consistent with the approach described at paragraph 643 of the Digest .

&htab;200.&htab;At the end of any consultations which are held in accordance with section 7, the parties may make a joint declaration to the effect that they want their agreement to become operative, notwithstanding the concerns raised by the Minister. This, too, appears to be consistent with the approach noted above. However, that is not the end of the matter. Sections 10 and 11 enable the Minister to override any such declaration, and freeze the operation of the agreement. The Minister may adopt this course when of the opinion that the agreement creates either a threat to the level of service provided by the employer or a danger that the maintenance of the necessary level of service would entail an unjustified increase in costs at the public expense. The Committee is of the view that this is tantamount to a stipulation that an agreement may become (or remain) operative only where it is consistent with government policy as represented by the parameters (and by the exercise of the Minister's discretion). As indicated, both the Committee of Experts and the Committee on Freedom of Association have taken the view that such a provision has the same effect as a requirement of "prior approval". It follows that a freeze imposed on the basis of sections 10 and 11 of the 1985 Act would be incompatible with the principles of freedom of association - unless it could be shown to be justified "for compelling reasons of national economic interest", and that the legislation incorporated the safeguards which are considered to be essential even where interference with the right to negotiate is permissible.

&htab;201.&htab;The Committee has not been presented with any evidence to suggest that there are any compelling reasons of national economic interest to justify continued interference with the right of workers and unions in the national insurance and subsidised sector to promote and to protect their interests through free collective bargaining. Furthermore, the legislation does not incorporate the safeguards referred to in the previous paragraph.

&htab;202.&htab;The Committee recalls that the so-called Temporary Act which preceded the WAGGS Act operated for a period of six years. The Committee notes that the 1985 legislation has already been in operation for a period of three years, and that in May 1988 the Government announced that it would be extended at least to the end of 1992. A measure of this nature cannot be regarded as "exceptional", as remaining in force for only a "reasonable period", or as operating only to the extent necessary to protect the national economic interest.

&htab;203.&htab;The Committee notes that according to the Review Report, the earnings gap between the national insurance and subsidised and market sectors has widened appreciably during the currency of the WAGGS Act. This inevitably raises doubts as to whether the Act contains adequate safeguards to protect the living standards of those to whom it applies. The complainants clearly feel that it does not. Employers in the national insurance and subsidised sector also appear to be unhappy about the overall effect of the legislation - as is evidenced by their stated desire to narrow the earnings gap between employees in this sector and those in the market sector if they were permitted to do so.

&htab;204.&htab;The Committee also recalls that in 1984 the direct contacts mission expressed the view (Report of the mission, paragraph 52) that "the workers in the non-profit sector are entitled to the same protection under Convention No. 87 in their right to bargain collectively as are the workers in the market sector". The Committee is of a like mind. The WAGGS Act accords less favourable treatment to a group of workers in respect of whom there is no warrant for such treatment in Convention No. 87 or Convention No. 98, or in the jurisprudence of either the Committee of Experts or the Committee on Freedom of Association.

&htab;205.&htab;In light of these considerations, the Committee asks the Government to amend the 1985 Act, in particular sections 10 and 11, in such a way as to permit workers and employers in the national insurance and subsidised sector to negotiate and to conclude agreements in full freedom in accordance with the principles of freedom of association.

&htab;206.&htab;The Committee is not persuaded by the Government's argument that it should concern itself with the way in which the legislation has been applied in practice, rather than with the text of the legislation. It is true that the Committee can and should have regard to the practical application of legislation which is the subject of a complaint. Self-evidently, legislation which appears to conform to the requirements of the principles on freedom of association may be applied in a manner which is inconsistent with those principles. It is also possible, though less likely, that a piece of legislation which appears to be at variance with the principles could be applied in a manner which is in conformity with the principles. This is a somewhat unlikely eventuality, if only because the mere existence of a law means that it almost inevitably exerts some kind of normative effect, irrespective of the manner in which it is applied.

&htab;207.&htab;In the present circumstances, it is clear that the WAGGS Act is not only intended to have a normative effect, but that it has actually had such an effect. The very fact that the Government has not found it necessary to use the "ultimate remedy" strongly suggests that the legislation has succeeded in regulating the behaviour of those to whom it is directed. This is further evidenced by the fact that the gap between earnings in the national insurance and subsidised and market sectors has widened appreciably during the currency of the legislation - notwithstanding the clearly articulated desire of both employers and unions to narrow that gap if permitted to do so. Indeed, the Government uses precisely this desire to reduce the gap as part of the rationale for the legislation.

&htab;208.&htab;The Committee would also observe that the Government may well have a legitimate interest in seeking to control wage costs in the national insurance and subsidised sector - as in the public and market sectors. As has been pointed out by the direct contacts mission and by employer and worker organisations, the Government has at its disposal various means by which it can quite properly achieve these objectives: these include the Wage Determination Act 1970, as amended by the law of 7 July 1987, which gives the Government extensive powers to intervene in the bargaining process in both the market and trend-following sectors for compelling reasons of national economic interest.

&htab;209.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

- The Committee considers that the Government should take steps to amend the WAGGS Act, in particular sections 10 and 11, so as to permit workers and employers in the national insurance and subsidised sector to negotiate and conclude agreements in full freedom in accordance with the principles of freedom of association.

&htab;210.&htab;The International Miners' Organisation (IMO) presented a complaint of violation of freedom of association against the Government of Morocco on behalf of its affiliate, the Miners' Trade Union of the Democratic Confederation of Labour (CDT), in a communication dated 17 February 1989. On the same day, the CDT, having sent several requests to the Director-General of the ILO to take action in this case, in particular in telegrams dated 27 December 1988 and 3 and 24 January 1989, decided to file a complaint itself against the infringements of trade union rights perpetrated by the Government. Similarly, in a cable dated 26 January 1989, the World Federation of Trade Unions (WFTU) informed the ILO of its serious concern as regards this case. Lastly, the Organisation of African Trade Union Unity (OATUU) stated in a communication dated 22 March 1989 that it upheld the CDT's complaint.

&htab;211.&htab;The Government sent a reply on this case in a communication dated 12 April 1989.

&htab;212.&htab;Morocco 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;213.&htab;On 27 December 1988, the ILO was requested by the CDT to intervene in a serious labour dispute which was developing in the Jerada mines in Morocco. The IMO and the CDT later filed a complaint against the Morocco Coalmining Company in Jerada as a directly involved partner and against the Government of Morocco, which has a legal and moral obligation to ensure compliance with and application of labour laws and international labour standards. The complainant alleged infringement of trade union rights and violation of ILO Conventions during the above-mentioned labour dispute between the miners and the Jerada Mining Company (Oujda Province).

&htab;214.&htab;More specifically, the IMO considers that the Government of Morocco has violated ILO Conventions Nos. 87, 98, 143 and 155. In its view, it is the inhuman conditions in which miners live and work that led the persons concerned to hold the strike which has lasted since 19 December 1988. According to the IMO, the miners themselves must pay for their helmets, working tools and even their boots. The showers are three kilometres away; miners are transported there in dump trucks, like the coal, without protection and regardless of the weather. They live in unsanitary dwellings. They and their families are hungry and cold, since their coal allowance has been cut off by the management.

&htab;215.&htab;The CDT has supplied the following additional information on this case: it explains that the Morocco Coalmining Company in Jerada is a limited liability company of which the State holds 98 per cent of shares. It should normally be managed by a board of directors under the supervision of the Ministry of Energy and Mining; in addition, the management takes all decisions unilaterally without consulting workers' representatives and their trade union or hearing their grievances, and systematically refusing to engage in dialogue with CDT leaders in particular. This intransigent attitude, coupled with poor management of the enterprise, is the underlying cause of the labour dispute in this mine. The deterioration of the company in general and of working conditions has drastically affected the situation of the workers who number about 7,000 (5,500 miners plus 1,500 supervisory personnel and technicians).

&htab;216.&htab;The CDT gives the following explanation of the dispute and its causes. As regards the workers' claims, the Jerada section of the trade union handed in a list of claims to the management as early as 1985, and requested it to embark on a dialogue concerning the workers' living and working conditions, and the following issues in particular:

- review of wages and compensation;

- normal housing and decent transportation;

- the cost of tools and personal equipment now paid for by the miners to be covered by the management;

- preventive safety and health measures and curative measures against industrial accidents and silicosis, and more humane occupational medicine;

- one litre of milk daily;

- fairer compensation in the event of silicosis (workers who are 30 per cent affected by the disease still continue to work);

- election of a commission in order for workers' delegates to participate in the administration of social welfare;

- review of the retirement pension system;

- respect for the dignity of workers, who are subjected to provocation and intimidation by the management and its personnel, especially if they are members of the CDT;

- lastly, respect of trade union rights and recognition of the CDT as a social partner.

&htab;217.&htab;The CDT adds that the management has chosen to adopt an obstinate and intransigent attitude as regards its recognition and initiation of a dialogue and that it has refused to enter into any negotiations with union leaders regarding the above-mentioned claims, arguing that a social dialogue with staff delegates is always open in the joint committees. According to the CDT, however, negotiation of the claims list does not fall within the competence of staff delegates in joint committees as the management asserts, since the terms of reference of the joint committees are defined as: to ensure compliance with the regulations, to examine complaints by the staff within their area of competence concerning recruitment, granting security of employment, promotion, dismissal and disciplinary penalties, and to endeavour to settle collective disputes of all kinds. Thus, in the CDT's view, negotiation of its claims with the management can only fall within the competence of the trade union, which is the only instrument for defending workers' claims.

&htab;218.&htab;The CDT explains further that, faced with the management's obstinacy, the miners decided to call a three-day strike from 1 to 3 December 1988, which was adhered to by 98 per cent of the workers. The management then resorted to acts of provocation and intimidation and threats against the striking workers. The supervisory ministry, the Ministry of Mining, followed suit by adopting the arbitrary decision to suspend for three months the three CDT safety and health delegates, including the secretary-general of the Jerada section of the CDT. The Ministry referred in its decision to section 32 of the Miners' Regulations in order to penalise the delegates who, in its view, committed gross negligence of their duties by refusing to carry out their prescribed tours of inspection on 1, 2 and 3 December 1988. The dates referred to in the decision were precisely those on which the three-day strike was held by the CDT, the three delegates having joined their fellow strikers. The CDT considers that the Ministry should have had the courage to mention in its decision that the delegates were suspended for striking.

&htab;219.&htab;The CDT states further that the tension spread in the Jerada mines. The strike was resumed on 19 December 1988 with the aim of initiating a dialogue on the claims and obtaining the reinstatement of the suspended delegates. However, the executive of the CDT decided to approach the supervisory ministry, the Ministry of Energy and Mines, as well as the Ministry of the Interior and of Information and the Oujda police department, requesting them to intervene with the management of the coalmining company to settle the dispute. Following this meeting on 26 December 1988, the CDT decided to resume work to show that it favoured an easing of tensions and in the hope that the management would endeavour likewise to alleviate the situation by initiating dialogue. However, as the workers were going back to work in an orderly way, they were surrounded and even violently assaulted by supervisory personnel mobilised by the mangement. This prevented them from resuming work and caused the miners in the galleries collectively to down tools in protest against the acts of repression and the closure of the pit by order of the management. This left the workers no choice but to continue the strike.

&htab;220.&htab;On 28 December 1988, the management committed another act of repression with the complicity of the local and provincial authorities: 14 CDT activists were arrested and brought before the court of the first instance of Oujda on unfounded and trumped-up charges. The first four accused were tried on 16 January 1989 for distributing tracts likely to disrupt the public order; three of them were sentenced to three months' imprisonment, while the fourth was acquitted. As for the other ten, who were prosecuted for interference with the right to work and unlawful confinement, nine of them were sentenced to three months' imprisonment and a fine of 500 dirhams, and the tenth to two months' imprisonment and a fine of 400 dirhams.

&htab;221.&htab;As regards the two trials, a text dating back to 1939 concerning subversive tracts served as the basis for the accusation in the case of four strikers whose only crime was to distribute a trade union tract, the contents of which by no means disrupted the public order. This constitutes interference with the exercise of trade union rights. The hearings on 16 January 1989 at the Oujda court showed that the case had been instigated by the Jerada Coalmining Company, which fabricated the story of unlawful confinement and interference with the right to work. One of the alleged victims was found in the room reserved for witnesses. The first witness for the prosecution had written the registration number of one of the accused workers on his hand, although he was supposed to know this number which he allegedly reported to the police. The coalmining company even dared to ask the court for compensation for damages caused by the stoppage of work, as if the strike in itself constituted an offence. Lastly, the record of the proceedings was drawn up in French, a language which none of the accused understand.

&htab;222.&htab;The CDT states further that, at the date of its communication, the miners were continuing the strike begun on 1 December 1988 in order to obtain observance of their trade union rights and fulfilment of their list of claims. The court of appeal, which was to hand down a verdict on 13 February 1989 in the case of the miners convicted by the court of the first instance, had postponed its verdict to 16 February 1989.

&htab;223.&htab;According to the CDT, the only official reaction of the competent authorities was a meeting of a Parliamentary Commission on Economic Affairs, Employment, Energy and Mines held on 9 February 1989, at the request of deputies who are members of the CDT and the opposition, in the House of Representatives. This Parliamentary Commission, which devoted one session to the situation in Jerada, decided that a meeting should be held on 16 February 1989 at Oujda, to be chaired by the head of the Department of Mining of the ministry in question, with the participation of representatives of the management of the Jerada coal mines and their union representatives in order to study the list of claims of the Jerada miners.

&htab;224.&htab;The CDT states in conclusion that during the dispute between miners and the coal mine management, it observed the following violations:

- violation of the Workers' Representatives Convention (No. 135) and Recommendation (No. 143) by the suspension of three safety and health delegates;

- violation of Conventions Nos. 87 and 98 by the refusal to recognise the trade union section of the CDT and engage in dialogue with it, and by the arrest and indictment of union delegates for distributing a legal union tract, and by the surrounding of the CDT premises in Jerada in order to prevent workers from holding their union meetings there; - violation of the Protection of Wages Convention (No. 95) and Recommendation (No. 85) by making miners pay for their work tools (boots, picks, helmets and lamps);

- violation of the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111) by adopting a discriminatory policy against workers affiliated to the CDT;

- violation of Recommendation No. 102, in particular by failing to provide decent transport for miners (miners are transported in dump trucks);

- violation of the Workers' Housing Recommendation (No. 115) (most miners' dwellings - 13 square metres for a couple with four children - do not meet minimum housing standards);

- violation of Convention No. 155 and Recommendations Nos. 97 and 112 by failing to provide means of protection and safety and health measures for workers, as well as competent occupational health services.

&htab;225.&htab;In its reply dated 12 April 1989, the Government confirms that on 24 March 1988 the "Jerada Miners' Trade Union", an affiliate of the CDT, handed in to the Morocco Coal Mines Directorate (DCM) a 23-point list of claims, mainly concerning an increase in pay (20 per cent) and other compensation, the introduction of a new work timetable, the setting up of a committee on social welfare, improvement of medical services and working conditions, etc.

&htab;226.&htab;According to the Government, the coalmining company felt it necessary to go through the Committee on Staff Regulations and Personnel in order to consider these claims, in accordance with section 3 of Dahir No. 1-60-007 of 5 Rejeb 1380 (24 December 1960) to issue the staff regulations of mining enterprises (Miners' Regulations). The CDT was informed of this position through the personnel department, but this trade union, which is not represented on the Committee on Staff Regulations and Personnel, continued to demand direct dialogue with the coalmining company.

&htab;227.&htab;The Government states that the CDT declared a 72-hour strike in support of its claims, starting on 1 December 1988; this only affected underground workers (about 45 per cent of personnel). During this strike, the chief of the Oujda Regional Mining Board was to carry out safety inspections underground. As usual, he asked the safety delegates to accompany him to the workplace. To his great surprise, the three delegates refused to comply with this instruction, disregarding their professional obligations and their duty to assist the administration, under section 34 of the Miners' Regulations. In view of this attitude, viewed as gross negligence, the persons concerned were penalised in accordance with section 32 of the Miners' Regulations. This section provides in such situations for penalties of which the least severe was applied in this case, i.e. suspension of duties of safety delegates for three months starting on 8 December 1989.

&htab;228.&htab;The Government states further that, following a brief resumption of work from 5 to 13 December 1988, an incident occurred on 14 December when a group of 150 workers occupied the base of a sloping mine gallery in workings No. V for seven hours and prevented the other miners from going to their workplaces. The situation was brought back to normal, however, following the intervention of the Mining Board and work was resumed until 19 December 1988 when a new six-day stoppage was declared. After work was resumed on 26 December 1988, the situation appeared to be normal in the north basin and workings No. IV, but at workings No. V, after the workers had been transported down the shaft, a group of them occupied the base of the mining gallery. The same occurred at the other workings on the second shift. Thus, 445 strikers remained at the bottom for 24 hours. All attempts to make them come back up failed. In addition, the persons concerned damaged telephone lines and confined five foremen and machine operators responsible for transporting personnel. The miners continued to occupy the bottom until 27 December 1988 at 5.30 p.m. In view of the escalation of tension and in order to safeguard the security of the mine and personnel, the provincial authorities advised the coalmining company to suspend transportation of men down the shaft from 28 December 1988 to 7 January 1989. When work was resumed, the attendance rate did not exceed 53 per cent of workers. The strike essentially affected cutters and diggers, thus paralysing production.

&htab;229.&htab;The Government explains further that a dialogue was initiated none the less, enabling the labour dispute to be settled. On 27 December 1988 the Minister of Energy and Mining received the members of the national executive of the CDT. The latter requested him to rescind the decisions to suspend the three trade union delegates. During the meeting, the Minister stressed the need to ease labour relations in Jerada, following which this grievance might be dealt with favourably. The Governor of the province of Oujda, for his part, received the persons concerned on 3 January 1989 and invited them to endeavour to improve labour relations in Jerada. In confirmation of the complainants' statement, the Government explained that in order to examine the trade unions' claims at a higher level, the Commission for Economic Affairs of the House of Representatives met on 9 February 1989 in the presence of the Minister of Energy and Mining. During the discussions, full light was shed on the financial situation of the coal mines and the importance of current investment in the mines, which showed a heavy deficit. Figures were cited showing that the main purpose of maintaining this activity was a social one. However, in order to deal with the workers' grievances and at the Minister's suggestion, the members of the Commission for Economic Affairs of the House of Representatives decided to continue the dialogue in Oujda in a commmission chaired by the director of the mines and comprising representatives of the coal mine management and the various trade unions (the Moroccan Union of Workers, the General Union of Moroccan Workers, the Democratic Confederation of Labour and the National Union of Moroccan Workers).

&htab;230.&htab;The discussions in this Commission led to the signature of protocols of agreement between the parties and the resumption of work on 18 February 1989, explains the Government. Under the terms of these agreements, workers are granted a 5 per cent pay rise and increases of 50 per cent in housing allowances, 10 per cent in travelling allowances for leave and 133 per cent in loans for Aïd Al Adha. In addition, other decisions were taken regarding workers' participation in the administration of social welfare, an increase in the number of pilgrims (from six to ten), etc. The staff representatives, for their part, assured the management that they would do their utmost to make up for the delay in production by raising output and working harder.

&htab;231.&htab;The Government also wished to add the following specific information concerning respect of freedom of association and court proceedings. Following individual suits filed by miners who had been confined at the bottom of the mine on 26 December 1988, ten workers were called before the court, which convicted them, then released them conditionally. Four other persons were arrested for interfering with the right to work. One of the persons charged was released, while the other three were sentenced to one month's imprisonment. Lastly, the local secretary-general of the CDT in Jerada was never arrested. He had carried out his activities for the entire duration of the dispute. Moreover, the CDT premises had not been closed down.

&htab;232.&htab;The Committee notes that this case concerns anti-trade union reprisals taken by the Morocco Coalmining Company in Jerada and the Government of Morocco during a labour dispute which occurred in this company in December 1988 and January 1989. Essentially, it concerns the refusal by the Morocco Coalmining Company to negotiate with the complainant union, the Miners' Trade Union affiliated to the Democratic Confederation of Labour (CDT), and repressive measures following a strike held by miners in response to this refusal. The repressive measures were, in particular, the three-month suspension of three safety and health delegates of the CDT, including the secretary-general of the Jerada section of that union; brutal treatment by management which retaliated against the strike by a lock-out, using violence to prevent the workers from resuming work; and the arrest of 14 CDT activists who participated in the strike (four of whom were accused of distributing tracts likely to disrupt the public order, three of them being convicted and sentenced to three months' imprisonment and the fourth acquitted, and the ten others prosecuted for interfering with the right to work and for unlawful confinement, nine of them being sentenced to three months' imprisonment and the tenth to two months). The complainants also denounce the violation of a number of international labour standards not related to respect of freedom of association.

&htab;233.&htab;The versions given by the complainants and the Government in this case differ in several respects. However, in the light of the available information, it appears that following various requests for ILO intervention and the filing of formal complaints of violation of freedom of association, the Minister of Energy and Mining received the members of the national executive of the CDT on 27 December 1988 and some negotiation took place which did not, however, succeed; on the contrary, 14 striking workers were convicted. Nevertheless, both the complainants and the Government agree that a meeting was held to examine the situation at the Jerada mine, beginning on 9 February 1989, in the presence of the Minister of Energy and Mining, by the Commission on Economic Affairs, Employment, Energy and Mining of the House of Representatives. According to the CDT, this Commission met at the request of CDT deputies and the opposition and decided that a meeting should be held on 16 February 1989 at Oujda, to be chaired by the Director of the Department of Mining of the ministry in question, with the participation of representatives of the Jerada Coalmining Company and trade unions, in order to examine the Jerada miners' list of claims. According to the Government, on the other hand, the Commission was appointed at the initiative of the Government itself, with a view to holding the discussions of the unions' claims at a higher level. During the discussions in this Commission, full light was shed on the financial situation of the coal mines and the importance of current investment in this activity, which showed a high deficit. Figures were cited to show that the purpose of maintaining this activity was primarily a social one. The Government admits, however, that in order to deal with the workers' grievances and at the Minister's suggestion, the members of this Parliamentary Commission on Economic Affairs of the House of Representatives decided to continue the dialogue in Oujda in a commission chaired by the director of the mines and comprising representatives of the coal mine management and various trade unions.

&htab;234.&htab;According to the Government, discussions in this Committee led to the signature of protocols of agreement between the parties and to a resumption of work on 18 February 1989.

&htab;235.&htab;As regards the anti-trade union reprisals against striking workers and safety delegates, the Government claims that following individual suits filed by workers who had been confined at the bottom of the mine on 26 December 1988, ten miners were brought before the court, which convicted them and then released them conditionally. It also asserts that four other persons were arrested for interfering with the right to work and that one of the persons charged was released, while the other three were sentenced to one month's imprisonment. Lastly, it categorically denies that the local secretary-general of the CDT of Jerada had ever been arrested. On the contrary, it affirms, he had carried out his activities for the entire duration of the dispute. Moreover, according to the Government, the CDT premises had not been closed down.

&htab;236.&htab;In these circumstances, the Committee recalls the importance which it attaches to the principle that strike action is one of the legitimate means which should be available to workers to defend their economic and social claims.

&htab;237.&htab;The Committee notes with concern that in this case trade union delegates were suspended and striking workers were prosecuted, some of them sentenced to a month's imprisonment, while others were accused of distributing tracts likely to disrupt public order. In this respect, the Committee can only stress the fact that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of discrimination likely to infringe freedom of association in respect of their employment such as dismissal, transfer, demotion or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations shall have the right to elect their representatives in full freedom.

&htab;238.&htab;As regards the freedom of expression of trade unionists, the Committee recalls that the full exercise of trade union rights calls for a free flow of information, which may include the distribution of tracts, and that workers and employers, as well as their organisations, should enjoy freedom of opinion and expression in their publications and other trade union activities.

&htab;239.&htab;As regards the prison sentences imposed on trade unionists for striking, the Committee recalls that the development of harmonious labour relations could be impaired by an inflexible attitude being adopted in the application of severe sanctions, especially penal sanctions, to workers who participate in strike action. Therefore, all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence committed. Moreover, as the arrest of strikers involves a serious risk of abuse and places freedom of association in grave jeopardy, the competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests involve. The authorities should not have recourse to measures of imprisonment for the mere fact of organising or participating in a peaceful strike.

&htab;240.&htab;The Committee welcomes the fact that this labour dispute appears to have been settled to the satisfaction of the parties.

&htab;241.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee recalls the importance which it attaches to the principle that strike action is one of the legitimate means which should be available to workers to defend their economic and social interests.

(b) The Committee also recalls that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence committed and that the authorities should not have recourse to measures of imprisonment for the mere fact of organising or participating in a peaceful strike.

&htab;242.&htab;The Committee has examined this case on five previous occasions, often jointly with other cases concerning similar incidents, and most recently in its 256th Report, paragraphs 238 to 254 (approved by the Governing Body at its 240th Session, May-June 1988).

&htab;243.&htab;At its February 1989 meeting, the Committee addressed an urgent appeal to the Government for its further comments and observations on this case, failing which it would, in accordance with its established procedure, present a report on the allegations even if the Government's reply was not received in due time.

&htab;244.&htab;To date there has been no reply received from the Government.

&htab;245.&htab;El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;246.&htab;This case originated in a cable from the World Federation of Trade Unions (WFTU) dated 26 October 1982 concerning the violent arrests and disappearances of several named trade union leaders. At its meeting in March 1983 the Committee was obliged to note that, despite the time which had elapsed since the allegations were transmitted to the Government, no reply had been received and it addressed an urgent appeal for its observations. The Government sent some information on 14 March 1983 and the WFTU sent on 10 May 1983, a further list of union leaders and unionists allegedly imprisoned or kidnapped in an effort to repress the union movement. At the Committee's first examination of the case (226th Report, paras. 124 to 131, approved in May 1983), it expressed its concern at these detentions and urged the Government to take measures for the release or trial of the union leaders; it asked for specific information on the charges brought against them, the events leading to the charges and arrests, the texts of any judgements delivered and any available information on those persons reported missing.

&htab;247.&htab;The Government subsequently sent a series of short communications referring to the release of various union leaders by virtue of the Amnesty Act of 16 May 1983 and stating generally that the detainees were held on criminal charges carrying penalties of more than four years' imprisonment. At the Committee's second examination (234th Report, paras. 385 to 417 and Annex containing 34 names, approved in May 1984), it noted these releases but reiterated its concern that many trade unionists had been in custody since 1982 awaiting trial on charges carrying sentences of more than four years' imprisonment or had disappeared. It again urged the Government to supply precise information on the accusations made against these persons, on progress in their trials and on the whereabouts of those who had disappeared.

&htab;248.&htab;In February 1985 the Committee noted with interest as regards the cases before it at that time concerning El Salvador that the Government was ready to accept a direct contacts mission to examine the various aspects of all the cases (238th Report, para. 21). In its 239th Report of May 1985, the Committee noted as regards the cases then relating to El Salvador (Cases Nos. 953, 973, 1150, 1168, 1233, 1258, 1269, 1273 and 1281) that, following an official visit by the Director-General to the country, the Government was willing to accept a direct contacts mission with a view to examining the various aspects of these cases.

&htab;249.&htab;The mission took place in January 1986 and, in February 1986, the Committee took note of the mission report during its third examination of Case No. 1168 (243rd Report, paras. 366 to 408). Among other things, it stated that while the Committee was aware of the serious difficulties El Salvador was facing, it called on the Government to adopt appropriate measures to guarantee that trade union rights may be exercised in a normal fashion; this would only be possible in conditions in which fundamental human rights are respected and in a climate free of violence, pressures and threats of any kind. As for Case No. 1168 in particular, the Committee requested the Government to undertake an investigation to determine the whereabouts of the trade union leaders Elsy Márquez and José Sánchez Gallegos, and to keep it informed thereof; and it noted that some of the trade unionists mentioned by the complainants were free, and awaited the information promised by the Government concerning another 18 named trade unionists whose arrest had been alleged (concerning these 18 trade unionists, the Government reported that none of the persons listed was then imprisoned in any of the detention centres in the country, but that further investigations would be carried out to determine whether they had been imprisoned at some stage in police centres).

&htab;250.&htab;No further information was received and the Committee addressed an urgent appeal to the Government for a reply at its February 1987 meeting (235th Report, para. 12). This resulted in a new communication from the Government and the fourth examination of the case by the Committee at its May 1987 meeting (251st Report, paras. 334 to 356). The Committee stated that it was conscious of the difficult situation that the country was going through but considered it necessary to request from the Government yet further information so as to be able to reach conclusions in full knowledge of all the facts raised in the allegations and in the light of the situation prevailing in the country. It requested the Government to carry out a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos and asked for more infomation on the 18 named unionists facing trial and apparently still in detention.

&htab;251.&htab;Since no further information was forthcoming, the Committee addressed an urgent appeal - its third - for a reply to the Government at its February 1988 meeting (254th Report, para. 13). This resulted in a new communication from the Government and the Committee's fifth examination of the case (256th Report, paras. 238 to 254). In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations at its May-June 1988 Session:

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

(b) The Committee once again requests the Government to set up a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos, and expresses the hope that it will be possible to throw light on the fate of these trade union leaders in the near future.

(c) With regard to the detention and/or proceedings against the trade unionists Raúl Baires, Francisco Gómez Calles, José Vidal Cortez, Luis Adalberto Díaz, Héctor Fernández, Héctor Hernández, Jorge Hernández, Carlos Bonilla Ortiz, Silvestre Ortiz, Maximiliano Montoya Pineda, Raúl Alfaro Pleitez, Roberto Portillo, Antonio Quintanilla, Santos Serrano, Auricio Alejandro Valenzuela, René Pompillo Vasquez, Manuel de la Paz Villalta and José Alfredo Cruz Vivas, the Committee requests the Government to provide additional information on their arrest, explaining the specific charges against them, the status of the proceedings and whether they are being held in custody at present or not.

&htab;252.&htab;At the same time, the Government was requested to supply information on ongoing allegations contained in Case No. 1273 against El Salvador, which was the last remaining case to be examined jointly with the present case since the 1986 direct contacts mission (in which ten cases were considered).

&htab;253.&htab;No information was received and the Committee addressed its fourth urgent appeal in the history of this case to the Government at its February 1989 meeting (262nd Report, para. 12).

&htab;254.&htab;Before examining the substance of the case, the Committee considers it necessary to recall, as it has on several previous occasions when considering cases against the Government of El Salvador, the views that it expressed in its First Report [para. 31]: the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. As the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, detailed replies to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.

&htab;255.&htab;The Committee deeply regrets that, since the very opening of this case in October 1982, the Government has not sent all the details requested from it and then, only after many adjournments, Office reminders and urgent appeals. This attitude has now culminated in the fact that, in view of the time that has elapsed, the Committee has had to consider the case without having access to any recent information or details which it has specifically stated were necessary for a thorough examination.

&htab;256.&htab;The Committee recalls that a certain amount of information was obtained on this case during the 1986 direct contacts mission which had received every facility and active co-operation in its search for the information requested by the Committee. The mission noted that El Salvador faced serious difficulties owing to the armed conflict between Government and guerilla forces but that since the 1984 elections there was a certain positive evolution. The Committee has shown considerable patience and comprehension in relation to the situation facing El Salvador, as witnessed by its report on the case after the direct contacts mission and its 251st report. However, the fact remains that no substantive information has been forthcoming on 20 named persons. Two of them were reported missing in suspicious circumstances in the WFTU's letter of May 1983 and 18 were the subject of a search in 1986 but their names did not appear in the records of the Directorate-General of Penal Centres and Rehabilitation although they might have been held by the security forces (no reply has come on this from the Ministry of Public Safety despite inquiries by the direct contacts mission: see 243rd Report of the Committee, para. 392). The Committee considers it unacceptable that a member State would not provide detailed and complete answers when the lives and freedom of trade union leaders and trade unionists are at stake.

&htab;257.&htab;The Committee can only draw the Government's attention to the great importance it attaches to the principle that a climate of violence such as that surrounding the disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and such an event requires severe measures to be taken by the authorities [see, for example, Digest of decisions and principles of the Freedom of Association Committee , 1985, para. 76]. The Committee is also committed to the principle that because detention of unionists may involve serious interference with trade union rights and because of the importance of a fair trial, governments should bring detainees to trial in all cases without delay, irrespective of the reasons put forward for prolonging the detention [see Digest , para. 95].

&htab;258.&htab;The Committee considers that it is now imperative that the Government open independent judicial inquiries into the whereabouts of the 20 trade unionists whose names are listed in the Annex, as has been done by other governments when faced with a total inability to obtain data on missing individuals, and requests the Government to keep it informed on the results of said inquiries.

&htab;259.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee deeply regrets that, since the very opening of this case in October 1982, the Government has not sent all the details requested from it and then, only after many adjournments, Office reminders and urgent appeals. This has necessitated the present examination of this case without any recent communication from the Government.

(b) While recalling that a certain amount of information was obtained on this case during the 1986 direct contacts mission, the Committee considers it unacceptable that a member State would not provide detailed and complete answers when the lives and freedom of trade union leaders and unionists are at stake. (c) It draws the Government's attention to the great importance it attaches to the principles on the measures to be taken in cases of disappearance of trade union leaders and on rapid trial or release of detained unionists, set out in the above paragraphs.

(d) It urges the Government to open an independent judicial inquiry into the whereabouts of the 20 unionists listed in the Annex to this case. The Committee requests the Government to keep it informed on the results of said inquiries.

&htab;260.&htab;The Committee has already examined this case and presented an interim report to the Governing Body in November 1988, which was approved at the 241st Session of the Governing Body (see 259th Report, paras. 517 to 552). The Government sent further observations on the case in a communication dated 14 February 1989.

&htab;261.&htab;New Zealand 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;262.&htab;When it examined this case in November 1988, the Committee observed that the New Zealand Employers' Federation (NZEF) objected to changes in the system of union registration contained in the new Labour Relations Act, which came into force on 1 August 1987. The NZEF alleged that the granting of broad exclusive rights to unions by registration eliminated the workers' free choice of a union and that the continuance of what amounted to compulsory union membership provisions likewise undermined the workers' freedom to choose an organisation to represent them. The complainant also alleged that the excessively high minimum membership requirement (1,000 members) hindered the creation of trade unions.

&htab;263.&htab;The Committee noted the Government's denial of these allegations of government interference in the workers' free choice of a union to represent them. In particular the Government argued that choice existed because an unregistered union could be freely set up and represent whatever workers chose to be represented by it; unregistered unions were lawful and trade union activities by them, such as collective bargaining, were not proscribed by law. As for the 1,000 members registration requirement, the Government explained that this only applied to bodies wishing, voluntarily, to be registered under the Act, and that it was in line with the Act's objectives against a background of organisational fragmentation, namely to promote effective and efficient registered unions. As regards the important advantages granted to a union which obtained registration under the new Act (a statutory right to strike when negotiating an agreement; the right to register collective agreements enforceable through the Labour Court; the right to ballot members or negotiate with the employer on the question of compulsory union membership), the Government pointed out that this type of exclusive bargaining agent situation could be altered by union members after balloting.

&htab;264.&htab;The Governing Body, in the light of the Committee's conclusions, approved the following recommendations:

(a) The Committee considers that the registration system set up by the 1987 Labour Relations Act which accords exclusive negotiation rights to registered unions would not be incompatible with the principles of freedom of association provided that the registration is based on objective and predetermined criteria.

(b) The Committee nevertheless considers that the Act's 1,000 members minimum membership requirement might be liable to deprive workers in bargaining units covering a limited number of workers of the right to form organisations capable of fully exercising their activities, contrary to the principles of freedom of association. The Committee therefore requests the Government to indicate whether the Governor-General has made use of the power afforded to him under section 6(2) of the Act to specify another number of minimum members for the registration of a union. (c) The Committee notes that the legislation in force under which registered unions are granted certain exclusive rights respects the criteria set by the ILO's supervisory bodies as regards determination of organisations to have exclusive status, but is nevertheless aware that the formation of other unions could be seriously hindered in so far as the workers' choice would be limited and they would be inclined to join organisations benefiting from broader rights. It therefore requests the Government to supply information on developments in the number of unregistered unions and the type of activities they carry out.

(d) The Committee also requests the Government to indicate whether section 218 of the Act allows a non-exempted worker belonging to an unregistered union to have access to the Labour Court - for example, in a case of unjustified dismissal - and, if not, to specify the alternative remedies available to such a worker.

&htab;265.&htab;In a communication dated 14 February 1989, the Government states that, as regards the number and activities of unregistered bodies in New Zealand, given that such unions are unregistered, it does not have information to supply to the Committee as to their number and the activities which they carry out. There are, however, a number of agreements registered under the Labour Relations Act negotiated by unions which are currently registered but who have fewer than 1,000 members. The Government states that it is possible that such unions may decide to operate outside of the Labour Relations Act once their registration has been cancelled. It explains in this connection that unions have a year from the time their annual return indicates that membership is less than 1,000 to increase their membership to the 1,000 minimum or to amalgamate with another union. By mid-1989 most unions will have to have 1,000 members (other than those new unions with provisional registration) or have their registration cancelled. At this point, however, it is uncertain how many unions which lose their registration will operate outside of the Act.

&htab;266.&htab;The Government also notes that the Committee expressed concern as to whether non-exempted workers belonging to a non-registered union have access under the Act to the Labour Court, and asked the Government to specify the alternative remedies available to such a worker. In reply to this, the Government states that enforcement of contracts for employment in New Zealand is through a dual system. The Labour Relations Act provides enforcement procedures for the contracts of those who are unionised, that is, approximately two-thirds of the workforce. For those who are not unionised or who belong to unregistered unions, contracts can be enforced through contract law in the civil courts.

&htab;267.&htab;Although the Labour Relations Act does not allow access to the Labour Court for non-exempted workers belonging to an unregistered union, the Government explains that state-funded mediation is available to assist in resolving disputes between employers and unregistered unions, and contracts entered into by unregistered unions and employers are enforceable, but through contract law in the civil courts rather than through the Labour Court.

&htab;268.&htab;In relation to the 1,000 minimum membership requirement, the Government recalls that registration under the Labour Relations Act is not obligatory and that groups of workers which are not able, or do not want, to comply with this requirement can still be formed. As regards the Committee's concern over this figure, however, the Government states that this requirement for union registration is an essential component of the Government's policy designed to encourage the development of effective and efficient unions.

&htab;269.&htab;It acknowledges that section 6(2) of the Labour Relations Act gives power to the Governor-General to specify another number of minimum members for the registration of a union and is intended to apply to all unions, and not to any specified union or class of workers. Formal requests to the Government for the 1,000 minimum to be lowered can be made and will be considered by the Government. The Government states that as yet section 6(2) has not been invoked.

&htab;270.&htab;Lastly, the Government points out that the Labour Relations Act attempts to provide a framework through which unions can develop to provide more effectively and efficiently the services their members need. The Government has also aimed to ensure that workers may form and join unions of their choice. This is secured by allowing union coverage to be altered, if members so desire, through democratic processes, and by allowing unregistered unions the freedom to form, operate and bargain should they wish to do so.

&htab;271.&htab;The Committee regrets that the Government has been unable to supply information on the specific points concerning the key issue in this case, addressed to it when the Committee last examined the allegations. This lack of detail as to the situation in practice under the provisions of the 1987 Labour Relations Act can only leave the Committee in the same position as before in relation to the question: Does free choice of a union really exist in this particular system which favours registered organisations and gives them broad exclusive advantages over unregistered bodies?

&htab;272.&htab;The Government has argued on two main fronts: namely, that the system is optional, so choice exists at that level; and, that once having opted for the system workers can, through democratic processes, choose to change union coverage. Unfortunately, the Government is not in a position to supply data as to the validity of its first argument (although the Committee observes the statement that "a number of agreements" have been concluded by unions which, although currently registered, may well lose that registration and decide to operate outside the Act). This confirms the Committee's earlier understanding that the formation of other unions outside the registration system could be seriously hindered in so far as workers would be inclined to join only those organisations enjoying broader rights.

&htab;273.&htab;Indeed in one of its earliest cases [6th Report, Case No. 11 (Brazil), paras. 92 to 96], the Committee considered an optional system for "approval" of unions and questioned whether, simply because the approved unions enjoy, to the exclusion of other organisations, privileges of paramount importance in the defence of occupational interests, wage earners were not indirectly obliged to belong to the approved unions. It noted that the legislature in some countries - without any intention of discrimination - conferred on recognised unions, which were in fact the most representative, certain privileges in connection with the defence of occupational interests which only they were in a position to perform effectively; but it emphasised that the granting of such privileges should not be made subject to conditions of such a nature as to bring into question through their operation the fundamental guarantees of freedom of association.

&htab;274.&htab;In view of the lack of evidence on the existence of other unregistered organisations, the Committee considers, in the case under review, that the conditions attached to the grant of registration do indirectly bring into question the workers' right to establish and join organisations of their own choosing since they unduly influence that choice.

&htab;275.&htab;Neither does the Government go into any detail on the second type of choice available, namely the workers' right to change membership. In its earlier examination of the case the Committee had nevertheless noted (at paragraph 535 of its 259th Report) the Government's description that "workers who are dissatisfied with the registered union of which they are currently members may transfer their membership to another registered union. This transfer is done democratically after a ballot which must be won by a majority, while at the same time the union to which such workers wish to affiliate must ballot its members to verify that a majority will accept the new members".

&htab;276.&htab;As the Committee pointed out before, the ILO supervisory bodies have recognised that many industrial relations systems have set up procedures for registering workers' organisations and for recognising the representative trade union(s) in collective bargaining. In many countries the legislation confers the exclusive right to bargain for a specific category of workers upon the organisation which represents a certain proportion or a relative or absolute majority of the workers, and whose representativity is generally determined either on the basis of the number of members (checking membership lists), or by secret ballot (checking number of votes). In this connection, the Committee of Experts has stated [ General Survey , para. 295] that, where systems provide for the most representative trade union to have preferential or exclusive bargaining rights, it is important that the determination of the trade union in question should be based on objective and pre-established criteria, so as to avoid any opportunity for partiality or abuse.

&htab;277.&htab;It bears repeating that it has been suggested by the present Committee in past cases that where national legislation provides for a procedure of registering or certifying unions as exclusive bargaining agents, certain safeguards should be attached, such as: (a) the certification be made by an independent body; (b) the representative organisation be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of any organisation other than the certificated organisation to demand a new election after a reasonable period has elapsed. [See, for example, 109th Report, Case No. 533 (India), para. 101.]

&htab;278.&htab;In its previous examination of the present case, the Committee did not criticise the procedure under the 1987 Act whereby a registered union's exclusive status could be challenged before the Labour Court by other existing registered unions which claim to have parallel coverage of the workers involved (para. 543 of the 259th Report). No information has been brought to the Committee's attention showing that, in the almost two years' operation of this Act, this procedure has failed to secure their freedom to choose an organisation within the system to represent their interests. The Committee accordingly arrives at the same conclusion it came to earlier, namely that the registration system set up by the 1987 Labour Relations Act - which accords exclusive negotiating rights to registered unions - would not be incompatible with the principles of freedom of association so long as the registration is based on objective and predetermined criteria.

&htab;279.&htab;As regards the second allegation in this case, namely that the 1,000 minimum membership requirement was excessive, the Committee notes the Government's reply that the flexibility to lower (or increase) this number by virtue of section 6(2) of the Act has not been invoked as yet, but that formal requests for a decrease will be considered by the Government if and when received. The Committee also takes note of the Government's repetition that this requirement is an essential component of its policy designed to encourage the development of effective and efficient unions.

&htab;280.&htab;Given the Committee's conclusion set out above concerning the indirect pressure on workers to opt for the registration system established by the 1987 Act, and given the difficulty facing many geographical areas and small industries or enterprises in mustering 1,000 members, the Committee expresses its concern that workers in such situations might be liable to be deprived of the right to form organisations capable of fully exercising trade union activities. Such a case would be contrary to the principles of freedom of association. The Committee accordingly requests the Government to reconsider this very high minimum membership requirement with a view to reducing it to a reasonable limit or to allowing flexibility in its application. It asks the Government to keep it informed of any steps taken in this connection.

&htab;281.&htab;As regards the last outstanding issue in this case, namely, whether the protective provisions of section 218 of the 1987 Act can be used by workers belonging to unregistered unions, the Committee notes the Government's reply clarifying that section 218 is not open to such workers. It also notes that the Government explains that adequate alternative remedies through the civil courts protect them.

&htab;282.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) On the basis of the information provided to the Committee, it considers that the formation of other unions outside the registration system set up by the 1987 Labour Relations Act could be seriously hindered in so far as workers would be motivated to join only registered organisations since such organisations enjoy broader rights, and that the system thus indirectly brings into question the workers' right to establish and join organisations of their own choosing.

(b) The Committee is of the opinion that the 1,000 minimum membership requirement under the 1987 Act might be liable to deprive workers in small bargaining units or who are dispersed over wide geographical areas of the right to form organisations capable of fully exercising trade union activities, contrary to the principles of freedom of association.

(c) It consequently requests the Government to re-examine the system established under the 1987 Act in the light of the principles of freedom of association and the recommendations set out above and asks the Government to keep it informed of any steps taken in this connection.

&htab;283.&htab;The Committee has examined this case on two occasions, most recently at its February-March 1989 Session. [See 262nd Report of the Committee on Freedom of Association, paras. 230-244, approved by the Governing Body at its 242nd Session.]

&htab;284.&htab;Since then the Government has sent communications dated 17 February and 14 April 1989 in reply to the allegations still pending in this case.

&htab;285.&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;286.&htab;The pending allegations on which this complaint is based referred to the Government's use of the military and police forces to prevent strikes in the ports and oil refineries based on wage claims (acting on the basis of Legislative Decree No. 1632 of 4 August 1978) and to the murder of Mauro Pires, leader of the Union of Vehicle Drivers and Allied Workers of San Andrés, on 4 September 1987, an attack perpetrated on trade union leader José Barbosa dos Santos by two individuals who shot at him from a car, and death threats made by telephone against union leader Paulo Pereira. More recent allegations made in December 1988 and January 1989 concerned the murder on 22 December 1988 of Francisco Alves Mendes Filho, union leader of the rural workers of Xapuri, in the State of Acre, in the Amazon region, who was president of the rubber industry trade union (SERINGA) and national leader of the Workers' Central Organisation (CUT).

&htab;287.&htab;The Government had not replied to most of these allegations by the February-March 1989 Session. However, as regards the strikes held in March 1987 in the port, maritime and petroleum sectors, the Government had stated that the new Brazilian Constitution adopted on 5 October 1988 did not prohibit strikes in essential activities, but provided that legislation shall define essential services or activities and make provision for the pressing needs of the population.

&htab;288.&htab;At its February-March 1989 meeting, the Committee had adopted the following recommendations:

(a) The Committee deeply regrets the fact that the Government has failed to send all of the information on the pending allegations: the murder of trade union leaders Mauro Pires on 4 September 1987 and Francisco Alves Mendes 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;289.&htab;In its first reply dated 17 February 1989, which reached the Office after the end of the February-March session of the Committee, referring to the murder of Francisco Alves Mendes Filho on the night of 22 December 1988, the Government stated that, upon being informed of the threats received by this union leader, the Governor of the State of Acre had decided to appoint military police officers to protect the physical integrity of this person. Once this deplorable act had been perpetrated, the Secretariat for Public Security, which is the investigating body, entrusted a special delegate with the investigation and reinforced civil and military police contingents in order to elucidate the facts. This police delegate had conducted an inquiry on 23 December 1988. At the same time, the Ministry of Labour had also decided that the federal police should join the investigation in the State of Acre. A team of experts from Sao Paulo had been sent there in order to provide the investigators with reinforcements. The Medical Faculty of Sao Paulo had conducted investigations using material collected when the body was exhumed, which enabled it to identify several suspects. Following the police investigation, the case had been referred to the local judiciary. The Public Prosecutor's Office had decided to prosecute Darcy Alves Pereira, Darly Alves da Silva and Jardey Pereira. The first two had already been arrested and had confessed to their crime, while the third was in hiding. The Government affirmed that the Secretariat for Security was making every effort to capture the fugitive and that it had taken all the necessary measures to elucidate the crime in order to punish the guilty parties.

&htab;290.&htab;In a subsequent reply dated 14 April 1989, referring to the intervention of the armed forces in the strikes held in the ports and oil refineries in March 1987, the Government states that strikes in these activities were prohibited at the time, since such activities were considered as essential in so far as they involved the supply of fuel and food and in view of the public security nature of maritime and port activities. The purpose of the army's presence in Petrobrás was to protect the public property of a semi-public enterprise belonging to the public administration and to secure free access to work for the persons concerned. According to the Government, there had been no incidents involving striking workers and/or union leaders. To conclude, as regards the seamen, the Government stated that in accordance with isolated agreements with certain enterprises the navy had been called in as reinforcements to secure free access to work and to protect port installations. There had been no acts of violence but the strike had been declared illegal by the labour courts.

&htab;291.&htab;As regards the murder of Mauro Pires in Diadema in 1987 and of Sebastiao Teixeira do Carmo in Mauá in July 1988, according to the Government, police investigations have been completed and the files have been handed to the judiciary.

&htab;292.&htab;As regards the alleged attacks on José Barbosa dos Santos, Paulo Pereira and Oswaldo Cruz, the Government states that the Union of Vehicle Drivers, of which these persons are members, issued a statement through its lawyer to the effect that, in the absence of evidence, no measures had been taken regarding the alleged threats. The Government adds that these events had not been entered in the police records.

&htab;293.&htab;Lastly, referring again to the murder of Francisco Alves Mendes, the Government states again that the joint action undertaken by the Governor of the State of Acre and the federal and military police have made it possible to elucidate the facts and punish the guilty parties. It then reiterates the detailed information previously given in this respect and adds that a further inquiry has been opened with a view to identifying other persons who participated directly or indirectly in this homicide.

&htab;294.&htab;Before broaching the substance of the case, the Committee welcomes the fact that, contrary to what has occurred before, the Government has replied specifically to the various allegations pending in this case.

&htab;295.&htab;The Committee regrets, however, as regards the intervention of the armed forces in order to put an end to strikes in the ports and oil refineries, that the Government merely states that such activities, involving as they do the supply of fuel and food, were essential in nature under the terms of the Brazilian law then in force, and that consequently the strike had been declared illegal.

&htab;296.&htab;In this respect, the Committee can only recall that it has always considered that a strike is one of the essential means through which workers and their organisations should be able to promote and defend their economic and social claims and that national legislation should not allow suspension or prohibition of the right to strike, except in cases in which interruption of work due to a strike would endanger the life, personal safety or health of the whole or part of the population.

&htab;297.&htab;As regards the allegations concerning alleged attempts on the physical integrity of members of the Union of Vehicle Drivers, the Committee notes that, according to the Government, no files have been opened by the police concerning these cases. In these conditions, the Committee considers that this aspect of the case does not call for further examination.

&htab;298.&htab;The Committee greatly deplores the murder of trade union leaders Mauro Pires in 1987 and Sebastiao Teixeira do Carmo and Francisco Alves Mendes Filho in 1988. While noting the information supplied by the Government, according to which police investigations led to the indictment of three persons, two of whom have been arrested while the third has gone into hiding, and that a further inquiry has been opened in order to identify all of the persons who might have participated directly or indirectly in the homicide of Francisco Alves Mendes Filho, and that the three cases are now pending before the courts, the Committee must emphasise the fact that it has stated on innumerable occasions that a climate of violence such as that surrounding the murder of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities. [ See Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, para. 76.]

&htab;299.&htab;The Committee therefore urges the Government to make every effort to guarantee the personal safety of trade union leaders. It also requests it to communicate the text of the verdicts handed down against the perpetrators of the acts referred to above.

&htab;300.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee welcomes the fact that, contrary to what has occurred before, the Government has furthered the procedure in this case by supplying detailed information in reply to the complainants' allegations.

(b) As regards the intervention of the armed forces in 1987 to disrupt strikes in the ports and oil refineries, the Committee deeply regrets this action by the Government which, in its opinion, is contrary to the principles of freedom of association. The Committee recalls that a strike is one of the essential means through which workers and their organisations should be able to promote and defend their economic and social claims and that the suspension of prohibition of the right to strike is only acceptable if the interruption of work due to a strike would endanger the life, personal safety or health of the whole or part of the population. (c) As regards the murder of the three union leaders referred to by name by the complainants, Mauro Pires, Sebastiao Teixeira do Carmo and Francisco Alves Mendes Filho, the Committee greatly deplores the perpetration of such acts and firmly recalls that a climate of violence such as that surrounding the murder of trade union leaders constitutes a serious obstacle to the exercise of trade union rights. It therefore appeals to the Government to make every effort necessary to guarantee the personal safety of trade union leaders.

(d) The Committee also requests the Government to communicate the text of the verdicts handed down against the perpetrators of these acts.

&htab;301.&htab;The allegations presented by complainants in these two cases were contained in the following communications: from the International Confederation of Free Trade Unions (ICFTU) dated 17 June and 14 November 1988 and 5 January 1989, from the World Confederation of Organisations of the Teaching Profession (WCOTP) dated 9 November 1988 and from the World Federation of Trade Unions (WFTU) dated 15 November 1988. The Government sent its observations and information in reply to these allegations in letters dated 9 February and 14 April 1989.

&htab;302.&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;303.&htab;In its initial complaint of 17 June 1988, the ICFTU explains that workers in the service of the State launched several protest actions at the national level in April 1988 against Government Decree No. 2425 of 1988 freezing for two months (April-May) the salaries of federal public employees and of workers in state enterprises. In view of the Government's refusal to enter into discussions with the trade unions, the trade union organisations in the public sector and state enterprises decided to call a 48-hour strike on 3 and 4 May 1988. The Government reacted by stating that public employees may not strike, that any strikes that took place would be treated with the full severity of the law and that unlawful strikes would be followed by dismissals (public statement by the Minister of the Economy on 8 April 1988).

&htab;304.&htab;The ICFTU goes on to say that the strike was called by 163 trade union organisations, representing 1 1/2 million workers, and that it paralysed fully or partly all the sectors affected by the Decree, namely oil, metallurgy, the ports, electricity, chemicals, banks, railways, mining and telephones. The striking trade union organisations appointed a national co-ordination committee of representatives of workers in state enterprises and of public employees. On 4 May the co-ordinating committee requested a meeting with the Ministers of Labour and of the Economy. The former did not open negotiations and the latter refused to receive the workers' representatives.

&htab;305.&htab;The Government called in the army to repress the strike and to occupy the Petrobras and Duque de Caxias oil refineries in the State of Rio de Janeiro. At the Cubatao refinery in Sao Paulo, 400 workers coming off a shift were forced by the army to stay and work the following shift - which meant sleeping and eating in the refinery.

&htab;306.&htab;At EMBRAER, an aeronautics enterprise at San José dos Campos in the State of Sao Paulo, 242 workers were dismissed, including the works committee and trade union leaders. The aeronautics police forced the strikers at bayonet point to return to work.

&htab;307.&htab;At the Jaguariri copper mines in the State of Bahia, 68 workers, including 18 trade union leaders, eight members of the works committee and ten directors of the Public Employees' Association were dismissed.

&htab;308.&htab;Still in the mining sector, at Carajás in the State of Pará, 17 trade union leaders of the local association were dismissed and expelled from their accommodations (which belong to the enterprise); they were warned that they would be expelled on 26 May. Twelve workers from Puerto de Santos were also dismissed.

&htab;309.&htab;In a subsequent communication dated 14 November 1988, the ICFTU further indicates that since 7 November 1988, 2,000 workers from the Metallurgical Trade Union of the Volta Redonda National Iron and Steel Company are on strike and are occupying the plant to secure the recovery of the 26 per cent wage losses of recent months, a wage readjustment of 17.68 per cent for the month of July, the reinstatement of 70 of their colleagues who were dismissed following an earlier strike, and a six-hour working day on the basis of three daily shifts.

&htab;310.&htab;On 9 November 1988, the ICFTU continues, the police and the army raided the plant at 5 p.m., using tear-gas and sub-machine guns; they killed five workers and left dozens seriously injured. The trade unionists who were killed are Joao Carlos Barroso, William Fernandez Leita, Wladimir Freitas Monteiro, Victor Adriani and Vincente Silva. According to the ICFTU, the plant is still occupied by over 1,000 armed soldiers and surrounded by tanks.

&htab;311.&htab;The WFTU, in its complaint of 15 November 198, denounces the events at Volta Redonda and claims that 20,000 workers are on strike and that, in addition to the five workers who were killed (and it cites the same names as those given by the ICFTU), 43 were injured and four persons - Mauricio Plata, José de Almayda, Osvaldino Gómez and Marcelino Alvez - are missing. The WFTU adds that on 11 November 1988, 700 workers from the National Iron and Steel Company of Rio de Janeiro, together with workers from the Casa Piedra Mining Company in the State of Minas Gerais, came out on strike in solidarity with the workers of Volta Redonda and that five workers were injured in confrontations with the army.

&htab;312.&htab;The ICFTU, however, in a letter dated 5 January 1989, amends its previous letter stating that three, not five, workers were killed: Mr. Fernandes Filho and Mr. Freitas Monteiro who were shot, and Mr. Barroso who died after his skull was broken by blows.

&htab;313.&htab;The WCOTP, in its letter of 9 November 1988, denounces the violent intervention by the police (with tear-gas and cavalry charges) on 27 October 1988 in front of the Bandeirantes Palace, the headquarters of the Governor of the State of Sao Paulo, to disperse a peaceful demonstration by students. The Confederation states that ten demonstrators were injured. It also explains that the teachers and employees of three universities of Sao Paulo, members of the "Andes Association", have been on strike since September 1988, claiming salary adjustments to cope with galloping inflation.

&htab;314.&htab;In its first reply of 9 February 1989, the Government furnishes a certain amount of information and observations concerning the allegations made by the WCOTP concerning the alleged anti-union reprisals against teachers, students and employees of the University of Sao Paulo on 27 October 1988 during a demonstration in respect of pay claims. In this connection the Government states that the Regional Delegation for Labour of Sao Paulo, which it consulted on the matter, had informed it that employees of the university had indeed organised a campaign in front of the headquarters of the Governor of the state with a view to obtaining better salaries within the framework of the municipal election campaign of 1988. The Government confirms that the persons concerned held several public demonstrations but claims that none of these took place near the Governor's Palace or involved a dispute with the state military police. The Government states that an investigation is being carried out by the competent bodies of the Government of the State of Sao Paulo to determine who was responsible.

&htab;315.&htab;In another reply, dated 14 April 1989, concerning allegations by the ICFTU in respect of anti-union reprisals against public employees and workers in state enterprises, following a 48-hour strike in support of pay claims in May 1988, the Government claims that an attempt was made by the Ministry of Labour to negotiate with the strikers but that it had to be abandoned because of the latter's uncompromising attitude in refusing to leave the premises of the enterprises they were occupying.

&htab;316.&htab;The Government goes on to explain that the presence of the military in the Duque de Caxias oil refinery was designed to protect public property and avoid it being damaged and that this helped to ensure that the strike remained peaceful.

&htab;317.&htab;Still according to the Government, the workers who were dismissed at Porto Santos have all been reinstated following negotiations.

&htab;318.&htab;The Government states that the account given of the events which took place at the EMBRAER enterprise is inaccurate. It maintains that on 9 and 10 August 1988 workers of this enterprise went on strike claiming a 30 per cent wage increase with the support of the Metallurgical Trade Union which had remained inside the plant on 9 August when the strikers occupied the works. On 10 August, after negotiations had broken down, the strikers withdrew from the enterprise, leaving only 155 workers inside who were turned out on orders from the Aeronautics Ministry, which has jurisdiction over the said enterprise. The Government goes on to explain that the enterprise dispersed these 155 workers and opened an investigation to determine responsibilities. The investigation resulted in the dismissal of 119 workers and the dismissals were approved by the Metallurgical Trade Union itself.

&htab;319.&htab;As regards the dismissal of the three trade union leaders, Benedito Carlos de Sousa, Francisco Assis de Souza and Joao Pedro Pires, a judicial inquiry was opened before the Conciliation and Arbitration Board of Sao José dos Campos to determine whether there had been serious misconduct constituting just grounds for the dismissal of the said trade union leaders. In the course of the appeal lodged by the dismissed leaders, the enterprise proposed an agreement, which was ratified. According to this agreement, the leaders secured the guaranteed maintenance of their rights as though they had not been dismissed on just grounds. This agreement was approved by the regional tribunal of the second region of Sao Paulo.

&htab;320.&htab;Thirty-three of the 155 workers whose dismissal had been approved by the trade union were reinstated in the enterprise.

&htab;321.&htab;The Government concludes its statement on this allegation by specifying that the strike in question was judged to be illegal by the Sao Paulo Labour Court as a result of which, at the time, the workers concerned were deemed to have committed serious misconduct. At the same time, the Government claims, no one was dismissed on unjust grounds.

&htab;322.&htab;The Government refutes, moreover, the allegations concerning the dismissal of 17 trade union leaders at Carajás in the State of Pará.

&htab;323.&htab;More generally, the Government specifies, as regards the pay freeze for the months of April and May 1988 of federal public employees and of workers in state enterprises, that in fact Legislative Decree No. 2453 of 1988 provided for a 16.19 per cent pay increase for August 1988 based on the cost of living for April 1988, and that Act No. 7686 of 1988 established 17.68 per cent pay increases for November 1988 based on the cost of living for May 1988.

&htab;324.&htab;As regards the allegations made both by the ICFTU and by the WFTU concerning the social conflict in November 1988 within the National Iron and Steel Company at Volta Redonda in the State of Rio de Janeiro, the Government states, in a further communication dated 14 April 1989, that this mixed-economy company is one of the largest iron and steel works in the country and that it generates thousands of jobs and is a major source of foreign currency. The Government confirms that on 7 November 1988 a strike broke out among the 20,000 workers of this enterprise, as stated by the WFTU (not 2,000 as stated by the ICFTU). The Government also confirms that the strikers demanded pay increases and better conditions of work as well as the reinstatement of workers who had been dismissed for having participated in a previous strike. The Government adds that the strikers occupied the steel works, which are a vital sector of the plant housing the blast furnaces.

&htab;325.&htab;According to the Government, the aggressiveness which marked the atmosphere from the beginning of the dispute and which resulted in a deadlock in the negotiations on the claims, together with a series of incidents in which the property of the iron and steel works was damaged, motivated the injunction requisitioning the plant and the appointment of a judge, Mr. Moisés Cohen, to prevent further damage being done to the Company's property. In view of the difficulties encountered by the officer of the law appointed by the judge, the latter decided that energetic measures were called for to safeguard the property and people who are lawfully in the enterprise. He therefore called out the 220th infantry battalion, who were stationed at Barra Mansa and who ordered everyone who was unlawfully within the enterprise to leave it so as to safeguard the property belonging to the said enterprise.

&htab;326.&htab;Still according to the Government, the exasperation and aggressiveness of the strikers and the breakdown of the negotiations for a peaceful withdrawal from the works led to direct confrontation between the military and the workers and the death of three persons (not five as originally stated by the complainants).

&htab;327.&htab;In order to clarify the facts and to establish who was responsible, the following proceedings were instituted: (1) a police inquiry into the murder on 11 November 1988 of William Fernandes Leita and Wladimir Freitas Monteiro, both of whom were workers of the National Iron and Steel Company. This inquiry led to court proceedings for infringement of Article 121 of the Penal Code before the Penal Court of Volta Redonda; (2) a second police inquiry, into the murder of Carlos Augusto Barroso, another worker of the said enterprise, which also resulted in court proceedings; (3) three further police inquiries in respect of the injuries sustained by Victor Adriano Vicente da Silva, Antonio da Silva Nascimiento, Gleidson Costa de Sousa and José Luis Torres Botelho. The three inquiries culminated in penal proceedings against members of the army for infringement of Article 129 of the Penal Code. According to the Government, the first person named was a passer-by who had nothing to do with the strike in question.

&htab;328.&htab;The Government also states that the records of the police of Volta Redonda make no mention of any person reported missing and that no complaint in this respect has been lodged before any other body.

&htab;329.&htab;The Committee notes with concern that these two cases relate to measures of repression against strikers that are particularly serious since the Government itself does not deny that, following action in respect of pay claims, workers in the public service and in state enterprises have been dismissed, injured and even killed. The Government admits that it called in the army and police to ensure the maintenance of law and order. According to the complainant, in some instances this recourse to the army and the police was aimed at expelling workers who were occupying their enterprise. The Government indicates, however, that some dismissed trade union leaders or militants were subsequently reinstated.

&htab;330.&htab;The Government also indicates that the strikes or demonstrations which originated in opposition to Government Decree No. 2425 of 1988 in respect of the remuneration of these categories of employees (which remuneration was frozen for two months - April-May 1988 - instead of keeping pace with inflation) were illegal since they were called by workers in the public service and in state enterprises who do not enjoy the right to strike.

&htab;331.&htab;The Committee deplores the fact that a number of workers were dismissed for going on strike and have not been reinstated and the fact that army intervention to expel strikers who were occupying their enterprise resulted in injury to some persons and that others were killed.

&htab;332.&htab;As regards these violent deaths and the injuries inflicted, the Committee observes that police inquiries were undertaken to determine the facts and punish those responsible and that court proceedings are under way to judge the members of the army who were responsible for the murders and for the injuries inflicted on trade unionists. Without prejudice to these proceedings, 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 (see paragraph 70 of the Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body ). The International Labour Conference, in a resolution concerning trade union rights and their relation to civil liberties, emphasised that the lack of civil liberty renders the concept of trade union rights meaningless and that the rights conferred on organisations of workers and employers must be based on respect for these civil liberties. The Committee has endorsed this principle on innumerable occasions.

&htab;333.&htab;Consequently, the Committee urges the authorities to adopt effective measures with a view to restoring a normal situation and to inform it of the outcome of the court proceedings under way concerning those responsible for the murder and injury of trade unionists.

&htab;334.&htab;As regards the military and police repression inflicted on the many categories of strikers who are considered by the Government of Brazil to be public employees and workers in state enterprises who do not enjoy the right to strike in support of legitimate pay claims, the Committee can only recall yet again the importance it attaches to the strike as a legitimate means of supporting claims - a means of which workers and their organisations should be able to avail themselves for the defence of their occupational interests. The Committee recalls once again the principle established by the supervisory bodies of the ILO in this respect, namely that the right to strike can be restricted or even prohibited in the civil service or in essential services, whether public, semi-public or private, but that these restrictions or prohibitions would be meaningless if the laws and regulations established too broad a definition of the public service or of essential services. Consequently, the Committee has frequently pointed out that a prohibition on strikes should be confined to civil servants acting as representatives of the public authorities or in services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

&htab;335.&htab;In the Committee's opinion, in the circumstances of the present case, the right to strike should not be denied to workers in the sectors referred to in the present case, provided that the strikes of the workers in these sectors do not endanger the life, health or safety of the population.

&htab;336.&htab;The Committee therefore requests the Government to provide it with information on all measures it contemplates in order to bring its laws and regulations in line with the above-mentioned principles.

&htab;337.&htab;It also urges the Government to endeavour to obtain the reinstatement of all workers who were dismissed in connection with the labour disputes mentioned by the complainants in the present cases.

&htab;338.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee deplores the anti-union violence that resulted in violent deaths and injuries in confrontations with the military and police forces who expelled strikers in sectors wrongly considered by the Government to be essential.

(b) The Committee requests the Government to adopt effective measures in order to re-establish a normal situation and to inform it of the outcome of the court proceedings under way concerning the persons responsible for the murder and injuries perpetrated against trade unionists, especially in Volta Redonda.

(c) In the circumstances of this case, the Committee is of the opinion that the right to strike should not be denied to the workers of sectors referred to in the present case, provided the strikes do not endanger the life, personal safety or health of the population. The Committee requests the Government to keep it informed of all measures it is contemplating to bring its laws and regulations concerning strikes in line with these principles.

(d) The Committee urges the Government to endeavour to obtain the reinstatement of all workers dismissed in connection with the labour disputes mentioned by the complainants, especially in the EMBRAER aeronautics enterprise of San José dos Campos, and to keep it informed of developments in the situation in this respect.

&htab;339.&htab;The International Confederation of Free Trade Unions (ICFTU) presented a complaint of violation of freedom of association in Brazil in a communication of 23 January 1989. The Government sent its observations in response to this complaint in communications of 3 and 17 April 1989.

&htab;340.&htab;Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); on the other hand, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;341.&htab;The ICFTU states that it is alarmed by the provisions of Brazil's new Constitution of 5 October 1988, which reproduce certain aspects of earlier trade union legislation which, according to the ICFTU, are incompatible with Convention No. 87.

&htab;342.&htab;The ICFTU recognises that the new Constitution has introduced a number of provisions with a view to guaranteeing a greater freedom for trade unions vis-à-vis the State. However, it regrets that the new Constitution retains the two primary features of the corporatist structure of Brazilian trade unionism, namely, trade union monopoly and the trade union tax.

&htab;343.&htab;In this connection, the constitutional text is inconsistent in providing that "there shall be no more than one trade union of any kind representing the same occupational or economic category of workers in a given territorial area", while at the same time prohibiting any kind of intervention by the authorities in the activities of trade unions, and abolishing the previous requirement for state authorisation for the creation of trade unions. Moreover, it specifies that the territorial area will be defined by the workers, but stipulates that it may not be smaller than a municipality.

&htab;344.&htab;In addition, by providing that "the General Assembly shall set the level of contributions to be deducted from the pay of workers in a given occupational category for the financing of the confederational system, independently of the contribution required by law", the Constitution not only provides for contributions to be set by the General Assembly which will also finance federations and confederations (as opposed to the earlier practice where the contribution was primarily designed to help in the financing of trade unions), but maintains the trade union contribution required by law.

&htab;345.&htab;The ICFTU concludes that the new Constitution abolishes previous trade union legislation, including provisions governing collective bargaining, the registration of trade union organisations and the maintenance of the compulsory trade union contribution.

&htab;346.&htab;It also concludes that freedom to organise trade unions should be guaranteed, that an Act will identify the agencies responsible for the registration of trade union organisations, and that workers shall decide in the event of a duplication of trade union representation and as regards the definition of territorial areas for given trade union organisations, as provided for in the Constitution.

&htab;347.&htab;Nevertheless, the ICFTU doubts that the foregoing will in fact take place in Brazil in the light of a number of events which have taken place since the new Constitution was promulgated. For example, it explains, on 6 October 1988 one of Brazil's trade union confederations, the Workers' Central Organisation (CUT), filed for registration and the recording of its by-laws with the Ministry of Labour. At the same time, it requested registration in the "Record of Titles and Documents". It was compelled to follow this double procedure in order to become established as a legal entity, in the absence of any competent agency to handle registrations.

&htab;348.&htab;At the same time, the then Minister of Labour promulgated a Decree which contained interim provisions for the registration of new trade union organisations, establishing a procedure based on the new constitutional provisions which, without any doubt, tend to favour the legal existence of certain confederations.

&htab;349.&htab;However, several days later, a new Minister of Labour convened almost all workers' and employers' confederations to discuss the distribution of 20 per cent of the trade union contribution, which had previously been allocated to the Ministry of Labour, and the question of competence for the registration of new trade union organisations.

&htab;350.&htab;The ICFTU adds that immediately after this meeting, on 1 November 1988, the new Minister of Labour revoked his predecessor's Decree (Ministerial Decree No. 3280); several newspapers throughout the country reported that a "National Council of Trade Union Confederations" had been convened to discuss the above-mentioned questions concerning the registration of trade unions and the allocation of trade union contributions.

&htab;351.&htab;These facts lead the ICFTU to believe that certain parties, with the consent and support of the Government, seek to promote a situation which will restrict freedom of association and foster conditions to ensure that future legislation will maintain certain aspects of the earlier law.

&htab;352.&htab;The ICFTU adds that the gravity of the current situation is illustrated by the fact that one of the de facto confederations has not yet received any reply to its request for legal recognition. It therefore concludes that certain parties are promoting an irreversible situation which is incompatible with the principles of freedom of association and trade union autonomy.

&htab;353.&htab;In its first reply of 3 April 1989 the Government states that the country is taking its first tentative steps under the new Constitution, and is going through a period of transition as regards political, juridical and trade union relations. It adds that there is ongoing progress in the development of direct relations between employers' and workers' representatives, and that both groups sincerely wish to overcome any differences concerning the economic and social order.

&htab;354.&htab;The Government states that within the context of this new framework of industrial relations, the Ministry of Labour acts simply as an arbitrator, and a mediator in debates concerning industrial relations.

&htab;355.&htab;According to the Government, the social interlocutors have traditionally been the leaders of employers' and workers' confederations, and the managers of the national economy's most important sectors. The national confederations of workers have been invited to participate in these debates to ensure the authenticity of negotiations and to safeguard shared interests.

&htab;356.&htab;The Government assures that the new legislation will regulate all aspects of political and trade union relations and industrial relations, in particular through widespread consultation with rank and file members, in keeping with certain principles contained in the Constitution, such as the confederational system, the pre-eminence of trade union monopoly in the same branch of economic activity, the specificity of representation of economic and occupational categories (by industry, commerce, services, etc.), and of the liberal professions, the management of the trade union contribution, as provided for in current legislation, for the maintenance of services and programmes relating to class organisation.

&htab;357.&htab;According to the Government, the federal Constitution enshrines the principles of freedom of association and trade union autonomy as central features of the new trade union order, and confers upon trade union leaders complete responsibility for their own fate, whether in the area of political or class action, or in that of internal management, including financial management. The Constitution guarantees that the authorities will not interfere or intervene in the organisation or dissolution of trade unions (other than by means of judicial decisions), the freedom of workers to join trade unions, or by requiring state authorisation for the establishment of new trade unions.

&htab;358.&htab;The Government clarifies, however, that the Constitution nevertheless requires the registration of legal instruments with the agency responsible for the establishment of trade union organisations. This responsibility will certainly fall to the Ministry of Labour, following a tradition which for approximately 50 years has seen these matters handled by the Labour Relations Secretariat, and to regional and state delegations which will continue to ensure that the above-mentioned constitutional principles are respected.

&htab;359.&htab;As regards strikes, the Government states that it will respect the constitutional principle and confine itself to guaranteeing to strikers their right to participate peacefully in any strike and to help prevent accidents which sometimes result from the spirited defence of one's interests.

&htab;360.&htab;Lastly, the Government states that all of the points raised by the complainants will be taken into consideration to ensure that excellent and fruitful relations are developed with the Workers' Central Organisation (CUT).

&htab;361.&htab;In a second communication of 17 April 1989, the Government adds that the debates which led to the adoption of the new Constitution took place in a context of democracy and freedom of speech. Parties and political groups representing all currents were allowed to express their opinions in public and congressional debates. Inevitably, the Constitution was not able to accommodate all opinions expressed, inasmuch as many of these were incompatible and sought to promote the aspirations of individual sectors of society. However, the Constitution did succeed in capturing a consensus of the opinions expressed during the months preceding its promulgation, with a view to promoting new social, political and economic conditions in the country.

&htab;362.&htab;The Government then lists the constitutional provisions contained in Chapter II on social rights (articles 6 to 9) which, according to it, reflect the democratic principles that guided the formulation of the Constitution, namely the social rights to education, health, work, leisure, security, social insurance, the protection of maternity and children, and assistance to the most disadvantaged (section 6).

&htab;363.&htab;The Constitution proclaims that the rights of workers in cities and throughout the country include: protection against arbitrary and unjustified dismissal, protection against unemployment, the guarantee of a national minimum wage set by law to provide for basic needs, wage increments for night work, profit-sharing, the concept of a family wage for workers with dependants, an eight-hour workday and a 44-hour work-week, a six-hour workday for shift work, a weekly paid day of rest, preferably Sunday, 50 per cent higher pay for overtime, the right to annual leave paid at 133 per cent of normal wages, maternity leave without loss of wages for 120 days, paternity leave as established by law, the promotion of women in the labour market by means of specific incentives, notice of dismissal to be established by law in proportion to the length of service, but in no event less than 30 days, the reduction of occupational risks by means of better health and safety standards, free crèches and other pre-school centres for children up to the age of six, the recognition of collective labour agreements, the protection of workers vis-à-vis automation, insurance against employment accidents at the employer's expense plus the payment of damages by the employer where he is held to be negligent or at fault, the prohibition of wage differentials for equal work based on sex, age or civil status, the prohibition of any discrimination as regards wages, the prohibition of discrimination between manual, technical or intellectual workers or between different occupations, prohibitions on night work, dangerous work and unhealthy work as regards persons under 18 years of age, and on any kind of work as regards persons under 14 years of age, unless as apprentices (article 7).

&htab;364.&htab;The Government explains that the Constitution also enshrined the principle of freedom of association by providing, inter alia, that the law may not require the State's authorisation for the creation of trade unions, that it will reserve the registration of trade unions to competent agencies, and that it will prohibit the authorities from interfering and intervening in the organisation of trade unions. Furthermore, the Constitution prohibits the creation of more than one trade union organisation of any kind to represent a given economic or occupational categories of workers in a given territorial area to be defined by the workers and employers concerned, provided that this area is not smaller than a municipality. The Constitution also provides that it shall be the responsibility of trade unions to defend the collective or individual rights and interests of workers, including judicial and administrative questions; that the General Assembly shall set the contribution which, for a given occupational category, shall be withheld at the source in order to finance the confederational system, independently of the contribution called for by law; and that no worker shall be required to join or remain a member of a trade union. In addition, the Constitution states that trade union organisations must participate in collective bargaining, that members have the right to vote and hold office in trade union organisations, and that it is unlawful to dismiss a unionised worker after he has filed as a candidate for trade union office, or if he is elected to office, even as an alternate, until one year after the expiration of his term in office, unless he is found guilty of a felony. These provisions apply also to the organisation of trade unions in agriculture and fishing (article 8).

&htab;365.&htab;Lastly, the Government states that the Constitution recognises the right to strike and provides that it is up to the workers to decide when to exercise this right and the interests in respect of which it is used. It adds that the law will define essential services or activities and regulate their maintenance. Any abuses in this connection will be punished as provided for by law (article 9).

&htab;366.&htab;The Committee notes that the ICFTU's allegations essentially concern threats to freedom of association inherent in certain provisions of the new Constitution which Brazil adopted on 5 October 1988, even though the text embodies a number of improvements, and the difficulties encountered by a trade union confederation, the CUT, in obtaining its registration as a trade union organisation.

&htab;367.&htab;The Committee notes the assurances furnished by the Government concerning the matter of the CUT's registration, and in particular that the Government will take into consideration all comments made by the complainants with a view to ensuring harmonious and fruitful relations with the CUT.

&htab;368.&htab;The Committee hopes that the CUT will soon be registered, and that in accordance with the principles of freedom of association and trade union autonomy, it will enjoy all the prerogatives of trade union organisations in the defence and promotion of the economic and social interests of its members, including those which concern collective bargaining of conditions of employment and the exercise of the right to strike.

&htab;369.&htab;Therefore, the Committee requests the Government to let it know whether the CUT has been duly registered, and to keep it informed of any developments which occur on the basis of the principles mentioned in the foregoing paragraph.

&htab;370.&htab;On the questions of law, and particularly on the questions of trade union monopoly by occupational category in a territorial area defined by workers and employers, and on the question of the financing of the confederational system, the Committee notes that the opinions expressed by the complainants and the Government are at odds.

&htab;371.&htab;On the first question, the Committee notes that article 8 of the Constitution provides (a) that the law may not require authorisation for the establishment of a trade union, that it reserves registration to the competent authority and prohibits the authorities from interfering or intervening in the organisation of trade unions. However, article 8 also states that (b) it is forbidden to establish more than one trade union of any kind to represent the same occupational or economic category of workers in a territorial area to be defined by the workers and employers concerned, but in no case smaller than a municipality. In other words, the Constitution itself requires trade union monopoly by occupational category regardless of organisational level. The Committee therefore considers that this constitutional provision is not compatible with the principles of freedom of association.

&htab;372.&htab;As regards the financing of the confederational system, the Committee notes that article 8 of the Constitution provides that the General Assembly of the trade union shall set the level of contributions to be withheld from wages of given occupational categories of workers and used in financing the confederational system, independently of the contribution provided for by law. It also notes that no worker shall be required to join or remain a member of any trade union. Although the Constitution does not make trade union affiliation compulsory, and does not designate the beneficiary confederation, it requires the payment of what the complainants refer to as a "trade union tax"; in other words, it requires the deduction of a trade union contribution from the wages of workers in different occupational categories for the financing and maintenance of the confederational system of trade union representation, even though it allows the trade union's General Assembly to set the amount of the same. In addition, it also maintains the principle of the trade union contribution provided for by law.

&htab;373.&htab;The Committee considers that the questions concerning the financing of trade union organisations, as regards both their own budgets and those of federations or confederations, should be governed by the by-laws of the trade unions, federations and confederations themselves, and therefore, that constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association.

&htab;374.&htab;In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) As regards the Workers' Central Organisation (CUT), the Committee expresses the hope that this Confederation will be duly registered as soon as possible, and that it will enjoy all the privileges of trade union organisations in the defence and promotion of the economic and social interests of its members, including the rights of collective bargaining and the right to strike.

(b) The Committee requests the Government to let it know if and when the CUT has been duly registered, and to keep it informed of any developments in this area.

(c) While noting with interest that several provisions of the new Constitution have enhanced the freedom of trade unions vis-à-vis the State, the Committee considers that the provisions of article 8 of Brazil's Constitution of 5 October 1988, concerning the prohibition of creating more than one trade union for a given occupational or economic category of workers, regardless of the level of organisation, in a given territorial area which, in no case, may be smaller than a municipality, and those concerning the financing of the confederational system, are not compatible with the principles of freedom of association. (d) The Committee expresses the hope that trade union legislation compatible with the principles of freedom of association, and in particular with the right of workers to establish and join organisations of their choice, whether by occupational category or at the level of the enterprise, and the right of workers' organisations freely to draw up their by-laws and run their affairs autonomously, in particular as regards the financing of the confederational system, will soon be adopted.

(e) The Committee recalls that the ILO is at the disposal of the Government, if the latter so wishes, to help it draft such legislation.

&htab;375.&htab;The complaint by the Canadian Labour Congress (CLC), contained in a communication dated 15 February 1988, is presented on behalf of the nine member unions of the Associated Railways Unions (ARU). The Government sent its observations by a letter received on 29 November 1988. On 31 January 1989, the CLC requested an adjournment in order to submit a response to the Government's reply. However, in a further communication dated 5 May 1989, the complainant indicated it would not file a response and asked that the case be examined by the Committee.

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

&htab;377.&htab;In its complaint, the CLC alleges that the Government breached Convention No. 87 by enacting the Maintenance of Railway Operations Act, 1987 to put an end to a legal strike of the ARU member unions in a non-essential service sector that was not endangering the life, personal safety or health of the whole or part of the Canadian population, declared in complete conformity with the Canada Labour Code. The CLC submits that the Government's intervention was an unnecessary and unjustified intrusion into free collective bargaining, that deprived the railway unions of their only lawful economic lever. Attached to the CLC complaint is a document giving background information on the situation and describing the chronology of events leading to the adoption of the Maintenance of Railway Operations Act, 1987.

&htab;378.&htab;In its elaborate reply the Government begins by stressing the historical, social, economic and political importance of railways in Canada, mainly because of geographical and demographic factors (huge distances, low population density, diverse topography and severe climatic conditions). The history of Canada is to a great extent the history of its railway service according to the Government, which states: "without railways there would be and there could be no Canada".

&htab;379.&htab;The Government then describes the federal labour legislation which, under the Constitution, applies to railway operations. The legal process leading to the renewal of collective agreements is set out in the Canada Labour Code. Within three months preceding the expiry of an agreement, either party may serve notice that it wishes to commence collective bargaining. After a period of direct bargaining (where, on average, 25-35 per cent of agreements are settled) either party may file a notice of dispute with the Minister of Labour, who then has a number of options, but usually appoints a conciliation officer to assist the parties. If the parties cannot conclude an agreement at this stage, the Minister may extend the conciliation phase by appointing a conciliation commissioner or a conciliation board, or terminate conciliation thus placing the parties in a legal strike/lock-out position. The parties have the right to strike or lock out seven days after the end of conciliation. The Minister also has the discretion to appoint a mediator at any time to assist the parties, which he normally does when they indicate that mediation would help in their negotiations.

&htab;380.&htab;The vast majority of disputes are resolved during the conciliation phase through free collective bargaining and governmental intervention with a view to imposing settlements is relatively rare. According to the Government, it is only when every avenue of dispute resolution has been exhausted and the continuation of a particular dispute would have severe consequences for the national interest that Parliament gives consideration to ad hoc emergency legislation. When a circumstance of this nature arises, the objective of the legislation is not only to terminate the work stoppage, but to provide a mechanism to achieve a final settlement of all outstanding differences.

&htab;381.&htab;The Government stresses the unique circumstances which make Canadian economy highly dependent on rail transportation: large size of the country; patterns of economic development and industrialisation; geographic dispersion of resources; low population density; severe climatic conditions; and, in many instances, virtual absence of viable economic alternatives to rail transportation. The Government argues that all these factors make the economy of Canada more dependent than most industrialised nations on its extensive transportation infrastructure, of which railways are an intrinsic and key component. A railway work stoppage has an almost immediate impact for the continuing operations of a broad range of industries and employers.

&htab;382.&htab;Perhaps no sector better illustrates these far-reaching consequences than the grain industry, which generates $3.9 billion in export revenue. Grain sales depend upon an integrated transportation and grain-handling system - rail, trucks, country grain elevators, port operations, terminal elevators and shipping including the St. Lawrence Seaway in the east. Disruption in one sector affects the operation, economic efficiency and hence viability and employment status of other transport modes. The thousands of grain farmers in the prairie provinces, and also in Ontario and Quebec engaged in the production of grains for domestic and export purposes are affected by a shutdown of the rail transportation network. The major grain elevator terminals involved in grain exports at Prince Rupert and Vancouver on the west coast, and at Thunder Bay which comprises one of the largest grain-handling facilities in the western world, rely exclusively on rail transport, as do some 2,000 primary elevators throughout the prairie provinces. Numerous transfer elevators along the St. Lawrence Seaway and in the Atlantic provinces are also part of the grain export process. Some 7,000 rail cars of grain a week are employed to transport prairie grain; in a recent crop year bulk exports of grains and cereals totalled 30.2 million tonnes.

&htab;383.&htab;The grain industry is only one example of the railway's importance for the Canadian economy. Bulk commodities, a major component of foreign trade, account for some 50 per cent of all railway traffic in tonnage terms; rail exports represent 20 per cent of exports in value terms. Ultimately at stake in a railway work stoppage are its consequences for the reliability of Canada as a supplier of resources and goods and the continued economic viability of the railway industry itself and whether it will be able to continue to fulfil its vital role on which so much of the Canadian economy depends. A work stoppage in the industry results in job losses and a significant loss of revenue, and the industry's already diminished market share can be seriously undermined as users of rail service seek alternative means to move goods and products, a traffic loss that is at times irreversible.

&htab;384.&htab;Dealing more specifically with the 1986-87 negotiations, the Government emphasises the particularly complex bargaining structure then prevailing. On the employer side, the two major companies, Canadian National (CN) and Canadian Pacific (CP), agreed to come jointly to the bargaining table, but they also bargained on behalf of eight subsidiary companies. On the union side, the ARU grouped a number of interests from the running trades (engineers, conductors and trainmen), non-operating employees (office, stores, maintenance of way and signal employees) and two of the shopcraft unions (carmen and electricians). To further complicate matters, only seven of the nine member unions bargained with both railways through ARU; the two other unions bargained at the ARU table with one railway, and at a separate table with the other railway. According to the Government, this fragmentation on the union side created obvious difficulties at the bargaining table. The Conciliation Officer appointed by the Minister of Labour found the bargaining situation even more complex than usual, partly due to the bargaining structure and partly to the parties' widely opposed bargaining positions.

&htab;385.&htab;The conciliation officer being unable to assist the parties in reaching agreement, the Minister, bearing in mind the importance of the railway industry to the Canadian economy, appointed a conciliation commissioner, who concurred that the bargaining structure compounded the substantial issues at the bargaining table. In his report, released on 10 August 1987, he dealt with all the major items in dispute, recommending a two-year agreement with annual increases of 3 per cent each year. During this period, as concern mounted throughout the country, the media were full of reports on an impending strike, a situation aggravated by the imminent release of the Conciliation Commissioner's report on disputes with other railway bargaining units, and their subsequent acquisition of the right to strike.

&htab;386.&htab;At the request of the parties, the Minister appointed a mediator on 14 August 1987. Picketing began in some locations on 18 August, with ARU calling a national strike on 23 August, after negotiations broke down despite the mediator's assistance. The first day of the strike, the Minister sent a telegram to the parties, advising them that the Government could not and would not tolerate a shutdown of the nation's major transportation system, and summoning the negotiating committees to resume bargaining with the assistance of his Associate Deputy Minister, in a final attempt at mediation.

&htab;387.&htab;The meetings began amid what the Government terms "a deluge of representations from across the country", of which he gives a few examples. On 27 August, shortly after the mediator announced no agreement could be reached, the Minister introduced back-to-work legislation in the form of the Maintenance of Railway Operations Act, 1987 (Bill C-85), which the House of Commons adopted at 2 a.m. on 28 August.

&htab;388.&htab;Bill C-85 provided that on the coming into force of Part I of the Act (the only part germane to this complaint) the railway companies were required to resume operations, and members of the unions then on strike were obliged to resume the duties of their employment. The expired collective agreements were extended until 31 December 1988 in order to ensure that the employees would continue to be entitled to all the benefits and protections contained therein, and an arbitrator was appointed to resolve the issues that were in dispute between the parties. The Act further provided that the parties were entitled to agree to amend any provision of the collective agreement (other than its term), even one prescribed by the arbitrator. Financial penalties, equally applicable to the employers and the unions, were provided for contraventions of the Act.

&htab;389.&htab;In the aftermath of adoption of Bill C-85, the difficulties which had plagued negotiations from the start continued to hamper constructive dialogue the end result being that, although the legislation had envisioned that the arbitration process should only require 60 days, in all, it took almost 11 months to resolve the issues which had created the original impasse in bargaining. By the time the final award was rendered, the extended collective agreement had only another five and a half months to run, and the parties would be back in bargaining in less than three months' time. Whether the length of time that was required to resolve these six issues is attributable to their complexity, or to the parties' failure to make a sincere effort to resolve them prior to engaging in strike action, is impossible to determine. It is evident, however, that had the Government not intervened, the parties were quite prepared to subject the Canadian public to the devastating effects of a prolonged work stoppage over their private differences.

&htab;390.&htab;In conclusion, the Government submits that railways have always been and continue to be of critical importance for the welfare of the Canadian public. Numerous small communities are dependent on the railways for their very existence. Producers of a number of key commodities, such as western grain farmers, have no reasonable alternative means to get their products to markets. Commuters in large urban centres rely on rail passenger services to take them to and from their places of work. Because of the inter-relatedness of the Canadian transportation network, the employment of workers in a number of other industries depends upon the reliable operation of the railways. The losses in personal income sustained by these individuals due to a rail strike cannot be easily recovered, if at all, once the work stoppage ends. Thus, a strike in the railway industry has far-reaching effects on the lives of many other Canadians.

&htab;391.&htab;The Government made every effort to promote a negotiated resolution, by appointing a conciliation officer, a conciliation commissioner and a mediator. In addition, the Minister gave the parties a final opportunity to resolve their dispute through bargaining by providing the help of his Associate Deputy Minister, but there was no indication that either party would be prepared to change its position, no matter how prolonged the work stoppage might be.

&htab;392.&htab;The Government has supported and continues to support free collective bargaining process, but was obliged to balance the parties' right to freely negotiate their collective agreements against the general welfare of the other members of society and their right to pursue their livelihoods. In light of the evidence that there was no likelihood that the parties would be capable of reaching a negotiated resolution in the foreseeable future, the Government was compelled to act in the public interest. The Maintenance of Railway Operations Act, 1987, was formulated to be as unintrusive as possible into the parties' relationship. The right to strike was only temporarily withdrawn, as the collective agreements were extended just until 31 December 1988, a period of some 16 months. The parties were entitled to serve notices to bargain for its renewal any time after 1 October 1988. An arbitrator was appointed to resolve the issues remaining in dispute between the parties, and his awards on the various items were issued between February and July 1988. Even during the life of the extended collective agreements, the parties were entitled to mutually agree to amend any of its provisions.

&htab;393.&htab;The Government admits that the Maintenance of Railway Operations Act, 1987 placed temporary limits on the right of members of the Associated Railway Unions to strike. However, it submits that such limitations were and are consistent with the general principles embodied in the International Covenant on Economic, Social and Cultural Rights and Convention No. 87 concerning freedom of association and protection of the right to organise, which Canada has ratified. The sole purpose of the Government in promulgating this legislation was to protect the welfare of large segments of the Canadian population from the serious adverse effects of a dispute which the parties had demonstrated themselves incapable of resolving.

&htab;394.&htab;The complainant alleges that the Government has infringed on the right to strike of Canadian railway workers by adopting the Maintenance of Railway Operations Act, 1987. For its part, the Government stresses the devastating effects a long general strike would have had on many crucial sectors of the Canadian economy: it submits that its only objective was to protect the welfare of large segments of the population and that it was compelled to act in the public interest.

&htab;395.&htab;The Committee notes that the complainant and the Government generally agree on the description of the events which led to the August 1987 strike and to the adoption of back-to-work legislation, although the Government blames the parties for their intransigent attitude and their inability to conclude a negotiated settlement and, to a lesser extent, the complex bargaining structure. The Committee observes that the Government used all the statutory means at its disposal to promote a negotiated resolution but to no avail. Whatever the immediate and underlying reasons for that dispute, the Committee notes that the ARU, in complete conformity with the Canada Labour Code, launched on 24 August 1987 a legal strike, which had been under way for five days when the Maintenance of Railway Operations Act became law.

&htab;396.&htab;Very early on, the Committee has laid down the principle that the right to strike is one of the legitimate and essential means through which workers and their organisations may defend their economic and social interests [ Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO , third edition, paras. 362 and 363, and cases cited].

&htab;397.&htab;It is also a well-established principle that the substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes can only be justified in a limited number of situations: civil servants or workers in essential services in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [ Digest , loc. cit., para. 387], provided however these workers have access to adequate procedures, such as conciliation and arbitration, where the parties concerned can participate at all stages and in which the awards are binding on both parties and are fully and promptly implemented [202nd Report, Case No. 931, para. 210, Canada].

&htab;398.&htab;The Committee has previously been called upon to examine whether or not a given activity or enterprise constituted an essential service according to the above-mentioned criterion. There is not, and there cannot be, any hard and fast rule allowing such a categorisation: what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. The Committee has indeed stated in the past that strikes may be restricted and even prohibited, in the public service, essential services or a key centre of a country's economy because - and to the extent that - a work stoppage may cause serious harm to the national community [194th Report, Case No. 893, para. 114, Canada, Alberta]. More recently, the Committee has restated this very principle, in a case concerning British Columbia, in the following terms: whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful if applied to a specific category of staff in the event of a strike, whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association (Case No. 1430, 256th Report, para. 189). The Committee also recalls it has concluded on several occasions that transport, generally speaking, does not fall within the category of essential services [ Digest , para. 407, and cases cited].

&htab;399.&htab;In this case, the Government's arguments are essentially based on economic considerations. It readily admits that the Maintenance of Railway Operations Act, 1987 temporarily restricted the right to strike recognised to members of the Associated Railway Unions, arguing however it was compelled to act in the public interest. The Government was undoubtedly under heavy public pressure to adopt back-to-work legislation, but the Committee recalls it has dismissed similar economic arguments in comparable - though not identical - cases [217th Report, Case No. 1099, para. 470; 234th Report, Case No. 1255, para. 190, Norway], and in a case concerning the postal service in Canada [202nd Report, Case No. 931, para. 211].

&htab;400.&htab;Furthermore, in this instance, the strike was allowed to last only five days before the Government decided to introduce back-to-work legislation. That Act restricted, with an immediate application to a work stoppage called in conformity with the law, the right to strike granted to railway workers by the federal legislation. In all the circumstances, and despite the almost 11-month period that was necessary after the enactment of the law to settle the issues which created the initial impasse, the Maintenance of Railway Operations Act, 1987 does not appear to be conducive to sound industrial relations, which should be founded on a predictable and stable legislative framework respecting the principles of freedom of association.

&htab;401.&htab;The Committee is aware, given the particular situation of the railway transport industry in Canada, that a total and prolonged stoppage in railway services might lead to a situation of acute national emergency such as to endanger the well-being of the population, which may in certain circumstances justify the Government to intervene, for instance by establishing a minimum service. In that respect, both the Committee and the Committee of Experts have considered on previous occasions it would appear legitimate that a minimum service be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should however be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; in addition, workers' organisations should be able to participate if they so wish in defining such a service in the same way as employers and the public authorities [ Digest , loc. cit., para. 415; General Survey by the Committee of Experts on the Application of Conventions and Recommendations "Freedom of Association and Collective Bargaining", ILO, 1983, para. 215]. As the Committee emphasised in a recent case, the employers' and workers' participation in the determination of essential services not only allows a careful exchange of viewpoints on what in a given situation can be considered as minimum services limited to the absolutely essential, but also contributes to guaranteeing that the scope of the minimum services does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions in the trade union organisations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services [Case No. 1342, Spain, 244th Report, para. 154].

&htab;402.&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 strike of August 1987 in the railway sector had been declared in complete conformity with the Canada Labour Code and that the Maintenance of Railway Operations Act, 1987 putting an end to this strike was adopted, according to the Government, with a view to ordering railway workers back to work to prevent severe hardship to the community, since all available conciliation and mediation proceedings had failed to bring about a negotiated settlement.

(b) The Committee notes that the Maintenance of Railway Operations Act, 1987 provided for a 16-month extension of the collective agreement and imposed the settlement of the complex dispute through a mediation-arbitration procedure, and draws the Government's attention to the considerations regarding sound industrial relations set out above.

(c) The Committee considers that the provisions of the Maintenance of Railway Operations Act, 1987, which ordered the railway employees back to work five days after the beginning of a strike and instituted compulsory arbitration in circumstances that were not endangering the life, personal safety or health of the whole or part of the Canadian population are not in conformity with the principles of freedom of association.

(d) The Committee asks the Government to keep it informed of the industrial relations situation in the railway transport sector after the enactment of the Maintenance of Railways Operation Act, 1987.

&htab;403.&htab;The Committee on Freedom of Association has examined this case on a number of occasions, most recently at its November 1988 meeting, when it submitted an interim report to the Governing Body. [See 259th Report, paragraphs 360-425, approved by the Governing Body at its 241st Session (November 1988).]

&htab;404.&htab;Since then the ILO has received the following communications from the complainants: the International Confederation of Free Trade Unions (ICFTU): 5 October 1988, 31 January, 24 April and 11 May 1989; the World Confederation of Organisations of the Teaching Profession (WCOTP): 27 February 1989; the Workers' Unions of the General Insurance Company and Life Insurance Company: 13 December 1988; and the World Federation of Trade Unions: 25 April 1989. The Government sent its observations in communications dated 2 February, 21 March, 12 and 24 May 1989.

&htab;405.&htab;Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;406.&htab;At its 241st Session in November 1988, the Governing Body approved the following recommendations:

- as regards the ban on entering the country imposed on various trade unionists, and in the light of Presidential Decree No. 303 which terminated the administrative bans on entering the country, the Committee requested the Government to inform it whether the unionists Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro had benefited from the terms of this Decree and on developments in the trial concerning the reacquisition of Chilean nationality by the unionist Luis Meneses Aranda; - the Committee noted with concern the sentencing to terms of internal exile and suspended sentence handed down against trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña and stressed that the arrest and sentencing of trade union leaders for activities related to the defence of their members' interests infringe the free exercise of trade union rights; it requested the Government to keep it informed of any change in the legal situation of these union leaders;

- as regards the arrest of the journalist Juan Pablo Cárdenas, the Committee noted that he had been released on 30 May 1988, when his detention had reached the maximum period allowed by law, and requested the Government to inform it of the present legal situation of Mr. Cárdenas, in particular to indicate whether court proceedings were under way for the suspected acts for which he had been held;

- as regards the incidents in Valparaiso and Iquique because of May Day celebrations, the Committee expressed its concern at the way in which International Labour Day festivities in both towns had been disturbed and noted the contradicitions existing between the complainants' allegations and the Government's observations on what had happened in the two towns and requested the Government to inform it of the decision in Florencio Valenzuela's case and on the court proceedings initiated by the College of Teachers of Iquique and by the police, respectively, which were being investigated by the military prosecutor;

- as regards the alleged threats and persecution of workers in the Curtiembre Interamericana company who had been involved in collective bargaining, the Committee noted that these workers had not presented complaints to the labour authorities about these alleged actions; however, it requested the Government to inform it of the outcome of the bargaining proceedings;

- as regards the various allegations presented by the National Confederation of Federations and Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH), the Committee noted the detailed information provided by the Government but requested specific observations on the alleged anti-union practices in this sector such as employer pressure to obstruct unionisation, unfair labour practices when trying to get bargaining rounds under way, mass dismissals of workers when they try to organise; as for the dismissal of trade union leaders Luis Benitez (Inter-Enterprise Union of Workers in the Culinary Arts), Angel Catalán (Workers' Union of the COPASIN company) and Juan Montalbán (Inter-Enterprise Union in the Restaurant and Hotel Trade of the Metropolitan Region), the Committee requested the Government to keep it informed of developments in the court proceedings they had brought for their reinstatement;

- as regards the dismissal of a number of workers and 17 trade union leaders in the State Railway Enterprise after a strike, the Committee noted the Government's statement that on 1 August 1988 39 of the 101 dismissed had been reinstated and requested the Government for information on developments in the court proceedings brought by the dismissed workers and on the possible reintegration of the 17 dismissed trade union leaders.

&htab;407.&htab;The ICFTU encloses with its communication dated 5 October 1988 a letter from the leaders of the Inter-Enterprise Trade Union of Education Officials of the Fifth Region (SIFE), who allege that the Viña del Mar Municipal Corporation engaged in unfair and divisive practices by setting up a parallel organisation, appointing its leaders and pressuring non-teaching personnel to leave the SIFE. Moreover, the check-off of new members' union dues is hindered. The SIFE states that it has filed a complaint against these practices and that it will submit a petition for protection before the courts on behalf of the organisation and non-teaching staff.

&htab;408.&htab;In another communication, dated 31 January 1989, the ICFTU alleges that the Ministry of the Economy is attempting to disqualify the leaders of the College of Teachers, Osvaldo Verdugo and Jorge Pavez, who are its President and General Secretary respectively, and are members of the National Council of the Single Central Organisation of Chilean Workers (CUT). The complainant maintains that the attempt to disqualify them is based on laws adopted without consultation, which run counter to the principles of freedom of association, since teachers are prevented from forming a trade union and are obliged to set up a professional association, the intention being to separate the College of Teachers from the CUT.

&htab;409.&htab;In a communication dated 24 April 1989, the ICFTU denounces the fact that, on the grounds of the CUT having called a general strike on 18 April in order to demand the lifting of the terms of exile of the union leaders Bustos and Martínez, an end to the privatisation of state enterprises and a reply to their list of claims, the Ministry of Internal Affairs had the CUT leaders summonsed for having infringed the Act on Internal Security of the State by calling the strike. The union leaders summonsed are Diego Olivares, Vice-President, Nicanor Araya, Secretary-General, and Moisés Labraña, Sergio Aguirre and Manuel Jiménez, executive council members. The CUT, and the leaders concerned in particular, repeatedly rejected the use of violence before and during the strike.

&htab;410.&htab;In a communication dated 25 April 1989, the World Federation of Trade Unions also denounces the fact that following the National Day of Protest organised by the CUT on 18 April 1989, the Government violently suppressed that demonstration and detained the leaders of the CUT: Diego Olivares, Nicanor Araya, Sergio Aguirre, Moisés Labraña and Manuel Jiménez. The detained union leaders will be brought to trial.

&htab;411.&htab;In a communication of 11 May 1989 the ICFTU sends additional information on the five leaders who have been summonsed by the Ministry of Internal Affairs for having called the national strike on 18 April. They have been able to make statements before the investigating magistrate on two occasions. The Court dropped two of the three counts brought against them by the Ministry and three of the five (Diego Olivares, Nicanor Araya and Sergio Aguirre) have been informed that the cases against them have been dropped.

&htab;412.&htab;In a communication dated 13 December 1988, the Workers' Union of the La Previsión Insurance Company explains that the enterprise's board of directors is composed of workers representing the employers of the Chilean State Bank who hold trade union office and appoint the company's manager. The complainant adds that, as a result of all of the infringements of workers' rights, the trade union decided to hold a public protest directed against the Chilean State Bank. The complainant states that on 13 September 1988, as Luis Morales Cruz, a worker, was standing in the doorway of that Bank, he was reprimanded by the director of the enterprise representing the state bank employees, who warned him to expect certain consequences; on 15 September Mr. Morales Cruz was notified of his dismissal. The dismissal was motivated by his having carried out trade union activities.

&htab;413.&htab;The complainant also states that the enterprise disregards the contractual terms in force since 1981 as regards recognition of length of service under which this benefit is paid in full upon termination of the employment relationship. Moreover, the complainant alleges that the leader of the trade union, Gerardo Araya Ramírez, was transferred to a post without specific duties, preventing him from performing his usual work. A claim has been filed against this situation with the Provincial Labour Inspectorate, and the enterprise has continued this practice.

&htab;414.&htab;In a communication dated 27 February 1989, the WCOTP alleges that the Government, through the Ministry of the Economy, Development and Reconstruction, is attempting to invalidate the election of Osvaldo Verdugo and Jorge Pavez, President and General Secretary respectively, of the College of Teachers, by requesting on the basis of resolution No. 19 of 17 January 1989 that these leaders be replaced within 30 days unless they present evidence that they have clear criminal records. The teachers' leaders had been accused under section 11 of Act No. 12927 (the State Security Act) of having organised a day of peaceful protest on 2 and 3 July 1986 on behalf of the "Civic Assembly", an organisation of which the Professional Association of Teachers of Chile (AGECH) was a member. Reference will certainly be made to this accusation in their criminal records.

&htab;415.&htab;In its communication dated 2 February 1989, the Government sends its observations on the complaint presented by the CTGACH, in particular concerning the dismissal of Mr. Luis Benítez Galaz, leader of the Inter-Enterprise Union of Workers in the Culinary Arts of the Metropolitan Region, who had on 26 August 1986 filed a claim to enforce payment of benefits ordered to be paid to him by the 24th Civil Court of Santiago by decision of 31 October 1985. These enforcement proceedings are now pending appeal before the Santiago Court of Appeal. As regards the other trials (concerning Angel Catalán and Juan Montalbán), they are still under way and there are no new facts to report.

&htab;416.&htab;In the same communication, the Government reports that the Inter-Enterprise Trade Union of Education Officials of the Fifth Region, which is mainly comprised of auxiliary workers of various municipal and private establishments, applied to enter into collective bargaining with the Viña del Mar Municipal Social Development Corporation. This application was not accepted by that Corporation in view of the following considerations:

(a) The Comptroller-General of the Republic has, in repeated legal opinions, stated that social development corporations such as that of Viña del Mar are not enterprises, and therefore the rules governing profit-oriented enterprises of the private sector do not apply to them.

(b) In addition, it should be borne in mind that section 281 of the Labour Code provides that there can be no collective bargaining in public institutions or private enterprises, over 50 per cent of whose budgets in either of the last two calendar years were state-financed, which is the situation of the Viña del Mar Municipal Social Development Corporation.

(c) Moreover, section 282 of the Labour Code categorically prohibits bargaining between one or more employers and workers employed in more than one enterprise. This is confirmed by the interpretation of this rule given by the Labour Directorate, which ruled that inter-enterprise trade unions do not have capacity to bargain collectively in any way whatsoever.

&htab;417.&htab;Therefore, the Viña del Mar Municipal Social Development Corporation is neither economically able nor legally authorised to bargain collectively since this is, moreover, prohibited by law. Enforcement of a law which has been in force for over ten years cannot be considered as an unfair practice. The Inter-Enterprise Union further accuses the Corporation of unfair practice in that it is alleged to have bargained collectively with a "professional association of auxiliary workers", which " ... would appear to have been set up at the Corporation's request". In this respect, the Government points out the following: (a) there is no record of the existence of this association; (b) neither has it been possible to confirm the existence of any request filed with the court by the alleged parallel trade union organisation. Lastly, the Viña del Mar Municipal Social Development Corporation states that it has always had and maintains excellent relations with all of the personnel working under it. In addition, the Corporation co-operates and has co-operated with all workers' organisations with which there is a dialogue and good understanding.

&htab;418.&htab;The Government states further that Rolando Calderón Aranguiz, the former Minister of Agriculture, returned to the country on 3 September 1988. Hernán del Canto Riquelme, the former Minister of Internal Affairs, returned to the country on 9 September 1988 and Mario Navarro Castro returned on 8 September 1988. The Government states that these persons are now residing in the country, to which they returned in accordance with Presidential Decree (E) No. 303 of 1 September 1988, which ended their term of exile. As regards trade union leader Luis Meneses Aranda, the Government states that, under the last paragraph of article 11 of the Constitution of the Republic, persons who have lost Chilean nationality may be rehabilitated by law. The Government is not aware that Mr. Meneses Aranda has initiated any procedure for this purpose.

&htab;419.&htab;As regards the alleged proceedings against the journalist Juan Pablo Cárdenas, the Government states that Mr. Cárdenas is not a party in any proceedings and that he has not been convicted.

&htab;420.&htab;As regards the events which occurred on 1 May 1988 in Valparaíso and Iquique and the proceedings under way against union leader Florencio Valenzuela, the Government states that the Military Prosecutor of the Intendancy of the First Region of Tarapacá is now investigating Case No. 140/88 brought against the Chilean police by the Iquique College of Teachers for alleged damage, assault and battery and breaking and entering and that this case was joined to Case No. 139/88 which is being investigated by the same Prosecutor and concerns assault of policemen on duty at the time of the events in this city on 1 May 1988. On 11 January 1989 the court ordered a temporary stay of proceedings, which ruling is currently being reviewed by the First Court of Appeal of Iquique. As regards the alleged proceedings against the presumed trade union leader Florencio Valenzuela, the Government reports that no proceedings are under way against any person by that name; nor has it been possible to ascertain Mr. Valenzuela's trade union mandate. The Government states that it appears that the information sent to the Committee on 20 September 1988 was not sufficiently clear and specific since it had been reported that the Third Local Police Court of Valparaíso had imposed fines on and issued warnings to the persons concerned and they had been released on the same day that they had been detained in the police station. One of the detainees was Mr. Florencio Valenzuela, who, along with the other detainees, was fined and released the same day; therefore no proceedings against Mr. Florencio Valenzuela are now pending before the local police court.

&htab;421.&htab;As regards the reinstatement proceedings initiated by dismissed employees of the state railway enterprise and 17 union leaders of that enterprise, the Government states that the partial stoppage of activities which affected the state railway enterprise in April 1988 was clearly illegal since, on the one hand, there was no outstanding labour problem and, on the other, the procedure used blatantly infringed the legal order in force. As regards the proceedings brought against the enterprise, they are under way in accordance with the procedure laid down in the Labour Code. The requested evidence of witnesses and documentary proof have been submitted. In one of the trials, 48 workers withdrew their suit with the agreement of the enterprise. In the trials initiated by José Ortega Fuentes and José Morales Hernández, they also withdrew their claim with the approval of the enterprise. It should be added that Andrés Hugo Salinas and Guillermo Munizaga were reinstated by the state railway enterprise.

&htab;422.&htab;The Government sends information on collective bargaining in the Curtiembre Interamericana enterprise, and notes that the bargaining process was completed on 24 May 1988, with the acceptance by the workers concerned of the employer's final offer. On 3 May 1988 an administrative fine equivalent to ten monthly contribution units was imposed on this enterprise for infringement of section 347 of the Labour Code, read together with section 348 of the same Code. The enterprise lodged an appeal against this fine before the Second Labour Court of Santiago entitled "Curtiembre Interamericana vs. Labour Directorate" Case No. 6697, in which a ruling was given on 30 September 1988 by the regular judge, who cancelled the administrative penalty on the grounds that there had been no infringement of the labour standards referred to. This decision has now been enforced.

&htab;423.&htab;In its communication dated 21 March 1989, the Government refers to the allegations presented by the ICFTU and the WCOTP concerning the presumed disqualification by the Ministry of the Economy of Osvaldo Verdugo and Jorge Pavez, leaders of the College of Teachers' Professional Association. It states that on 31 August 1987 that professional association informed the Ministry of the Economy of the election and setting up of a new executive board. On 10 September 1987, in communication No. 4602, the Ministry of the Economy requested the necessary documents to enter the names of the members of the executive board in the Registry of Executive Boards of Professional Associations kept by that Ministry in accordance with its legal mandate. Under section 10 of Legislative Decree No. 2757 of 1979 to issue rules governing professional associations, the requirements for eligibility as a director of such an association include not having been convicted or currently being prosecuted on account of a crime or an offence. In order to comply with this legal obligation, the Ministry of the Economy, in communication No. 5334 of 19 October 1987, requested evidence of a clear criminal record from the 15 members elected to the executive of the College of Teachers. Of the 15 members of the executive, 13 complied with the obligations laid down by the legislation in force. The two other members, Osvaldo Verdugo and Jorge Pavez, however, instead of conforming to the law as the other 13 members had done, confined themselves to sending the following replies:

(a) On 3 November 1987 they stated that their many activities prevented them from applying for a statement as to criminal record.

(b) A year later, on 24 November 1988, they stated that they had constantly been out of the city because of their activities, and had therefore been unable to obtain the statement in question.

(c) In a letter dated 6 January 1989, they stated that their many activities did not allow them time to apply for the statement as to criminal record.

&htab;424.&htab;Meanwhile, the Ministry of the Economy confined itself to repeating twice in 1988 (communications Nos. 6944 and 7757) their request for Mr. Verdugo and Mr. Pavez to respect the formalities required by law. In view of the fact that Osvaldo Verdugo and Jorge Pavez refused repeatedly and without reason to comply with an obligation laid down in the law, the Ministry of the Economy decided to penalise their recalcitrance to which end, in Ministerial Resolution No. 19 of 17 January 1989, it imposed a cash fine, to be paid into the treasury, on the leaders of the College of Teachers' Professional Association, namely Osvaldo Verduga Peña and Jorge Pavez Urrutia. Therefore, the Ministry of the Economy did not declare these leaders of the College of Teachers ineligible to hold office. Moreover, the Ministry of the Economy is not empowered to disqualify a leader of a professional association by administrative resolution.

&htab;425.&htab;In a communication dated 21 March 1989, the Government sends its observations on the allegations presented by the Workers' Union of the La Previsión General Insurance and Life Insurance Company and encloses a communication from the managers of both companies dated 15 February 1989 which, according to the Government, replies to the union leaders' complaint. This communication states that the enterprise has had to face the task of streamlining its operations with consequent staff dismissals, as a result of the difficult financial situation facing it and without which it will hardly be able to continue supplying services in such a competitive and fluctuating market as that in which insurance companies operate. This represents a considerable effort on the part of the enterprise to maintain its employees' source of work, and therefore it has found it difficult to understand the position taken by the workers, who have interpreted this process as being contrary to their interests, without presenting, in the document sent to the Committee, reliable information of sufficient quality and quantity enabling a rational evaluation of the problem to be made. The communication specifies that 66.57 per cent of the assets of both companies belong to the Workers' Assistance and Health Fund of the State Bank, 25.87 per cent to the Chilean State Bank, and the balance to various shareholders.

&htab;426.&htab;The communication of the managers of the two companies sent by the Government as part of its observations refers to the dismissal of Mr. Morales Cruz, stating that the latter was dismissed at the initiative of the enterprise, which availed itself of the legal power provided for in section 155(f) of the Labour Code, the employee being paid his statutory severance pay and contractual benefits; the person concerned had not obtained a court rescission of the dismissal, since he had no grounds to contest the decision of the enterprise. As regards the allegation that the enterprise had ignored contractual terms relating to length-of-service severance pay, the subject is being thoroughly discussed in various court proceedings in which the law courts will specify and interpret the scope of the terms of the employment contracts signed in October 1981. The communication likewise refers to the transfer of trade union leader Mr. Araya, which was dictated by a long-standing problem with his immediate chief. As he himself can confirm, it is by no means a problem arising under this management but the enterprise is none the less doing everything possible to remedy the situation and has even offered Mr. Araya a change of job if he deems it advisable.

&htab;427.&htab;In a communication dated 12 May 1989 the Government refers to the summonsing of the CUT leaders Diego Olivares, Sergio Aguirre, Nicanor Araya, Manuel Jiménez and Moisés Labraña. It states that on 18 April 1989, these persons incited and called for a total paralysis of production activities, transport, industry, agriculture, commercial activities and public services and utilities including hospitals, schools and universities. They gave instructions that children be kept home from school, that housewives do not go shopping or do chores, that at 9 p.m. everyone bang kitchen utensils and pots and pans to make deafening and unnecessary noise and that everyone stays home from work and remain inside their house at 2 p.m. so as to leave the streets and squares deserted. The aims of this calamity to national activities were:

(a) to force the Supreme Court of Justice to annul the court ruling handed down in accordance with due process and which was rez judicata sentencing Manuel Bustos and Arturo Martínez to banishment for having committed crimes set out in a law dating back to 1958;

(b) to force the Government to make all the country's employers pay a minimum wage increase of 100 per cent above the current level;

(c) to force all the employers to pay a travel allowance amounting to two daily tickets and a food allowance;

(d) to demand an increase in the amount of the children's allowance;

(e) to force the Government to terminate the system of selling shares in companies having monetary capital; (f) to force the Government to end the system of readjusting pensions, deposits and savings called the "promotion unit" which system had, in fact, permitted the maintenance of the purchasing power of pensions, deposits and savings.

&htab;428.&htab;The Government then states that during the first few days of February 1989 the body called the Single Central Organisation of Workers (CUT) commenced preparations for the total paralysis of the nation's activities on 18 April. On 9 March a group of persons belonging to the CUT "approved by acclamation" the calling of an illegal work stoppage without any vote or prior discussion according to Nicanor Araya, General Secretary of the said body. However, this illegal work stoppage was rejected and was not joined by several major union organisations. On 18 April when the paralysis of activities was called, violent acts took place, such as the destruction of an underground railway wagon; the assault of the driver of a public transport vehicle which resulted in him receiving bullet wounds; the shooting of police officers by two persons planting explosives in the Quinta Normal commune; the theft, ransacking and destruction of medical consultancy rooms in the "Joao Goulart" suburb of La Granga; an explosion in the San Bernardo municipality causing serious damage; electricity cuts caused by the toppling of all high tension cable towers; the attack on, robbery and ransacking of merchandise in the "San Miguel" shopping centre in La Granga by 200 persons who also broke windows; the stoning and attempted ransacking of a butchery, a bottleshop and a bakery in San Miguel commune; at the cross-section of Central Avenue and Las Industrias Street, at 11.45 p.m. a group of 150 persons led by five heavily armed individuals whose faces were hidden by hoods broke into the above-mentioned medical clinic owned by the municipality and demolished a wall, intimidated the guards, stole the milk destined for pregnant women and lactating mothers, sacks of rice and other food which the municipality gave to the needy and to those having few resources, medicines which were distributed to patients free of charge and medical equipment and broke down doors and shattered windows and glass. The damage to private property, public buildings and individuals surpassed 600 million pesos (US$2.5 million) without counting the 100 million pesos represented by the damage to the 11 electricity towers and electrical distribution installations.

&htab;429.&htab;The Government states that, given the alarming situation produced by the enormous destruction of private property and the Government's duty to protect law and order and citizens' safety which were seriously affected by these acts, it was decided that the public authority, the Governor of the Interior, would petition the courts to summon Diego Olivares, Sergio Aguirre, Nicanor Araya, Manuel Jiménez and Moisés Labraña in relation to any responsibility they could have in inciting and promoting all types of activities aimed at the collective interruption and suspension of work and stoppages and strikes in public services, production, transport and commerce. This would be a crime under section 11(2) of Act No. 12.927 on State Security which had been promulgated in 1958 when the Government of Carlos Ibañez del Campo was in power. The petition was lodged on 19 April 1989 with the secretariat of the Criminal Court of Appeal of Santiago. That court appointed an examining magistrate who questioned and took the statements of the five persons involved and who, on 8 May 1989, laid charges against Messrs. Olivares, Aguirre and Araya on the grounds that there was reason to believe that they had taken part in the crime set out in section 11 of Act No. 12.927; at the same time he released them on bail amounting to over 5,000 pesos (about US$20.00). Messrs. Labraña and Jiménez were released unconditionally. The defence counsel for the accused announced that they would appeal the magistrate's decision to bring charges and they had five days in which to lodge the appeal. As regards the sentence of the Appeal Court, the affected parties can make a request for a writ of certiorari to correct any errors or abuses committed by the judges and have the sentence amended. Such a writ is heard by the Supreme Court.

&htab;430. In its communication of 24 May 1989, the Government provides information on the present legal status of unionists Manuel Bustos and Arturo Martínez; during this month of May, Messrs. Bustos' and Martinez' lawyers filed an appeal to the Chamber of Accusations, asking that their banishment be rescinded, that they be transferred to Santiago and that they be allowed to serve the remainder of their sentence on nights. The Chamber of Accusations dismissed that request as lapsed. The defence attorneys further appealed to the Santiago Appeals Court, which unanimously upheld the decision of the Chamber of Accusations. The Government adds that neither Messrs. Bustos and Martínez nor their lawyers appealed to the President of the Republic or to the Minister of Justice, to obtain the presidential clemency for the remainder of their sentence. The Government points out that a privilege can only be granted or denied if the persons concerned request it, and that it cannot grant or deny something that the would-be beneficiaries did not ask.

&htab;431.&htab;As regards the ban on entering the country imposed on Rolando Calderón Aranguiz, Hernado del Canto Riquelme and Mario Navarro, the Committee notes with interest that in September 1988 these persons returned to the country where they are now residing; as regards trade union leader Luis Meneses Aranda, the Committee observes that the Government states that under article 11 of the Political Constitution, persons who have lost Chilean nationality may be rehabilitated by a law and that Mr. Meneses Aranda has not initiated any proceedings in this respect. In this connection, the Committee would request the Government to keep it informed of any proceedings for recovery of his nationality which may be initiated by this union leader and requests the complainant to inform it precisely of his present situation.

&htab;432.&htab;As regards the legal situation of union leaders Manuel Bustos and Arturo Martínez, sentenced to banishment, the Committee notes that there has been no change in their legal situation. It recalls that the detention and sentencing of union leaders in connection with activities related to the protection of workers' interests endanger the free exercise of trade union rights. In the light of the last information provided by the Government, the Committee urges the Government to take steps to lift the terms of banishment imposed on leaders Bustos and Martínez.

&htab;433.&htab;As regards the allegations concerning the journalist Juan Pablo Cárdenas, the Committee notes the Government's information to the effect that Mr. Cárdenas is not a party in any proceedings and he has not been convicted.

&htab;434.&htab;As regards the allegation concerning proceedings against union leader Florencio Valenzuela, the Committee notes that Mr. Valenzuela was fined, together with other detainees, and was released on the same day by the Third Local Police Court of Valparaíso and that no proceedings are pending against him; the Committee also notes that the proceedings initiated by the College of Professors of Iquique and by the police, respectively, which are now under way before the military courts, as a result of the events which occurred during the celebration of International Labour Day in 1988, have been referred to the First Court of Appeal of Iquique. The Committee requests the Government to keep it informed of the development of these court proceedings.

&htab;435.&htab;As regards the collective bargaining process in the Curtiembre Interamericana enterprise, the Committee notes the information supplied by the Government to the effect that this was completed on 24 October 1988, with acceptance by the workers involved of the employer's final offer.

&htab;436.&htab;As regards the various allegations presented by the National Confederation of Federations and Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH), the Committee takes due note of the detailed information supplied by the Government, in particular as regards the proceedings before the appeal court initiated by Mr. Luis Benítez Galaz, leader of the Inter-Enterprise Union of Workers in the Culinary Arts, against his former employer in order to recover the benefits ordered to be paid to him. The Committee also observes that, according to the information supplied by the Government, the reinstatement proceedings initiated by union leaders Angel Catalán and Juan Montalbán are still under way; the Committee requests the Government to keep it informed of the development of these proceedings.

&htab;437.&htab;As regards the reinstatement proceedings initiated by a group of workers and union leaders dismissed in connection with a stoppage of work affecting the state railway enterprise, the Committee notes that in one of the trials 48 workers withdrew their suit with the agreement of the enterprise and that trade unionists José Ortega and José Morales also withdrew their claim with the approval of the enterprise. It also notes that trade unionists Andrés Salinas and Guillermo Munizaga have been reinstated. The Committee requests the Government to inform it of the proceedings initiated by the other dismissed trade unionists, namely: José Criado, Chairman of the National Federation of Railway Workers; Germán Díaz, Secretary of the Federation; Miguel Muñoz, its Secretary-General; Ceferino Barra, Chairman of No. 1 Union; Juan Díaz, Secretary of that union; Rafael Rivera, its Treasurer; René Vilches, Director of No. 1 Union of San Bernardo; Oscar Cabello, Director of that union ; Tito Ramírez, Secretary of Trade Union No. 4 of Santiago; Juan Contreras, Chairman of the No. 5 Traction Union; Orlando Gahona, Treasurer of that union; and Iván Orellana and Luis Pradenas, both directors of that union.

&htab;438.&htab;As regards the allegations of unfair practices by the Viña del Mar Municipal Corporation against the Inter-Enterprise Union of Education Officials of the Fifth Region, the Committee notes the specific information supplied by the Government. It requests the complainants to send more precise information on the points raised in their communication.

&htab;439.&htab;As regards the allegations presented by the ICFTU and the WCOTP concerning the attempt by the Ministry of the Economy to disqualify Osvaldo Verdugo and Jorge Pavez, leaders of the College of Teachers, the Committee notes that the information supplied by the Government to the effect that in accordance with section 10 of Legislative Decree No. 2757 of 1979 (which provides that in order to be eligible as a director of a professional association, a person must not have been convicted or be currently prosecuted on account of a crime or an offence) the 15 members of the executive of the College of Teachers were requested to present statements as to their criminal records, and 13 of them complied with this requirement, except for Mr. Verdugo and Mr. Pavez. This resulted in them being fined, and not disqualified, as the Ministry of the Economy is not empowered to disqualify by administrative resolution a leader of a professional association. The Committee also observes that, according to the complainant, Mr. Verdugo and Mr. Pavez had been charged under the State Security Act of having organised a demonstration in July 1986. In this respect, the Committee points out that a conviction on account of activities related to the exercise of trade union rights should not constitute grounds for disqualification from trade union office and that a legislation providing for disqualification for this type of offence might be regarded as inconsistent with the principles of freedom of association.

&htab;440.&htab;As regards the allegations presented by the Workers' Union of the La Previsión Insurance Company, the Committee notes the information supplied by the Government, in particular, that Mr. Morales Cruz was dismissed in accordance with the legal provisions, and was paid all of the benefits to which he was entitled and that he did not contest this decision in court. It also notes that the allegation that the enterprise ignored the terms of contracts signed in 1981 as regards length-of-service severance pay is being examined in court. As regards the transfer of union leader Mr. Araya, the Committee observes that the enterprise offered him the opportunity of changing his job if he deemed this advisable. In this respect, the Committee requests the Government to keep it informed of developments of the proceedings under way concerning the contracts signed in 1981.

&htab;441.&htab;As regards the legal proceedings initiated by the Ministry of Internal Affairs against CUT leaders Diego Olivares, Nicanor Araya, Moisés Labraña, Sergio Aguirre and Manuel Jiménez for infringement of the State Security Act by calling a general strike on 18 April in order to demand the lifting of the terms of banishment of union leaders Bustos and Martínez, an end to the privatisation of state enterprises and a reply to their list of claims, the Committee notes the allegations presented by the ICFTU and WFTU. It also notes the Government's observations on the enormous damage to public and private property and the injuries suffered as a result of the disturbances of 18 April 1989. It observes that the union leaders Moisés Labraña and Manuel Jiménez have been released unconditionally. The Committee requests the Government to keep it informed of developments in the trial of the union leaders Diego Olivares, Nicanor Araya and Sergio Aguirre (who have been released on bail) and to send it the text of the judgement so that it can reach conclusions on this case in full knowledge of the facts.

&htab;442.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes that the Government has supplied detailed information on most of the allegations pending in this case.

(b) The Committee notes with interest that in September 1988 Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro returned to the country, where they have been residing ever since; the Committee requests the Government to keep it informed of any proceedings which may be initiated by the union leader Luis Meneses Aranda for recovery of his nationality, and requests the complainant to provide specific information on the present situation of this trade unionist.

(c) As regards union leaders Manuel Bustos and Arturo Martínez, the Committee notes that there has been no change in their legal situation and would recall that the detention and sentencing of union leaders in connection with activities related to the protection of the workers' interests endangers the free exercise of trade union rights. Therefore, in the light of the last information provided by the Government the Committee urges the Government to take steps to lift the terms of banishment imposed on union leaders Bustos and Martínez. (d) The Committee notes that the journalist Juan Pablo Cárdenas is not a party in any proceedings and that he has not been convicted; it also notes that Mr. Florencio Valenzuela was released on the day he was detained after paying a fine and that no legal proceedings have been initiated against him.

(e) As regards the legal proceedings initiated both by the College of Teachers of Inquique and by the police as a result of the events which occurred in this town on 1 May 1988, the Committee requests the Government to keep it informed of the development of these proceedings.

(f) As regards the collective bargaining process in the Curtiembre Interamericana enterprise, the Committee notes that this was completed on 24 October 1988 with the workers' acceptance of the employer's final offer.

(g) As regards the allegations presented by the CTGACH, the Committee, while noting the information supplied by the Government, requests it to keep it informed of the development of the legal proceedings for reinstatement initiated by trade unionists Angel Catalán and Juan Montalbán.

(h) As regards the proceedings initiated by a number of dismissed workers and a number of union leaders of the state railway enterprise, the Committee, while noting that 48 workers have withdrawn their suit, along with unionists José Ortega and José Morales, and that trade unionists Andrés Salinas and Pedro Munizaga have been reinstated, requests the Government to inform it of the proceedings initiated by the other dismissed trade unionists.

(i) As regards the allegations of unfair practices by the Viña del Mar Municipal Corporation against the Inter-Enterprise Union of Education Officials of the Fifth Region, the Committee notes the specific information supplied by the Government. It requests the complainants to send more precise information on the points raised in their communication.

(j) As regards the allegations concerning the ineligibility for union office of Osvaldo Verdugo and of Jorge Pavez, leaders of the College of Teachers, the Committee notes the information supplied by the Government to the effect that the Ministry of the Economy is not empowered to disqualify the leader of an association by administrative resolution and that evidence of a clear criminal record is required in accordance with the law and that it has already been presented by 13 of the 15 members of the executive board of the College of Teachers. In this respect the Committee points out that a conviction on account of activities related to the exercise of trade union rights should not constitute grounds for disqualification from trade union office and that a legislation providing for disqualification for this type of offence might be regarded as inconsistent with the principles of freedom of association. (k) As regards the allegations presented by the Workers' Union of the La Previsión Insurance Company, the Committee, while noting the allegations and the Government's reply, requests the Government to inform it of developments in the legal proceedings concerning the contracts signed in 1981.

(l) Lastly, as regards the legal proceedings initiated by the Ministry of Internal Affairs against various leaders of the CUT for having called a general strike on 18 April 1989, the Committee requests the Government to keep it informed of developments in the trial of the union leaders Diego Olivares, Nicanor Araya and Sergio Aguirre and to send it the text of the judgement so that it can reach conclusions on this case in full knowledge of the facts.

&htab;443.&htab;The Committee examined this case at its November 1987, May 1988 and February 1989 meetings and submitted an interim report to the Governing Body on three occasions [see 253rd Report, paragraphs 392-424, 256th Report, paragraphs 361-382, and 262nd Report, paragraphs 245-267, approved by the Governing Body at its 238th Session (November 1987), its 240th Session (May-June 1988) and 242nd Session (February-March 1989)]. Subsequently, the Government submitted several observations in communications dated 20 February and 25 April 1989.

&htab;444.&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;445.&htab;When the Committee examined this case at its February 1989 meeting, it made the following recommendations on the pending allegations [see 262nd Report, para. 267].

(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 (Alberto Conte), 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 (Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán, Alberto Boyd and Alberto Conte), and on the stage reached in the corresponding procedures. It presses the Government to send this information as a matter of urgency, and stresses that respect for due process of the 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;446.&htab;In its communication of 20 February 1989, the Government states that on 22 September 1988, the Deputy Public Prosecutor's Office of the Republic started proceedings upon learning that the premises housing the offices of "A.B. Conte Latino-americana de Publicidad" were used as a centre for editing and publishing material designed to subvert public order with the main objective of undermining the stability of the State's legally established powers. On the same date, a judicial decision was handed down which ordered the preventive detention of Alberto Bolívar Conte and the confiscation of documents and equipment used to perpetrate the crime provided for under section 301 of the Penal Code. The standards regulating preventive arrest, searches and the safeguarding of equipment used to commit offences are contained in sections 2148, 2149, 2159 and 2185 of the Judicial Code. At a later date, Alberto Bolívar Conte's lawyers applied to the High Court of Justice for a writ of habeas corpus as they considered that there were irregularities in the preventive detention order issued by the investigating official. Under a ruling of 27 September 1988, the High Court of Justice upheld the legality of the detention. On 28 September, Alberto Bolívar Conte's lawyers applied for release on bail to the Third Circuit Court of Panama; this was turned down because Mr. Conte was not entitled to bail under section 2181 of the Judicial Code which does not grant this right in a case involving offences penalised by five years' imprisonment. It should be pointed out that Alberto Conte was released pending his trial on 23 September 1988, when the Public Prosecutor of the Fourth Instance of the First Judicial District of Panama issued a judicial decision to this effect on humanitarian grounds. The Government nevertheless wishes to point out that Alberto Bolívar Conte left the country of his own free will on 23 December and that not only may he come back to the country but should do so, as judicial proceedings are pending; similarly, the Public Prosecutor of the Fourth Instance of the First Judicial District of Panama has issued a new detention order against Mr. Conte as part of the inquiry under way.

&htab;447.&htab;As regards Roberto Brenes, the Government states in its first communication (20 February 1989) that he was held for questioning during the night of 20 December as there was serious evidence of his participation in activities against internal state security. He was held for less than 12 hours. There are no penal proceedings pending against Roberto Brenes at the moment. In its second communication (25 April 1989), the Government states that although Roberto Brenes was involved in activities against internal state security, no warrant was issued for his arrest and he was free at the time he decided voluntarily to leave the country (21 December 1988).

&htab;448.&htab;The Government points out that none of the persons referred to in Case No. 1419 are being held at the moment and that there have been no further detentions. Furthermore, the Government reiterates that the complainant organisation continues to equate crimes under the ordinary law as defined by the Panamanian legal system with alleged violations of the right of freedom of association. Finally, the Government puts on record its concern about keeping open the dialogue with the Committee on Freedom of Association and with the ILO, and its willingness to provide any information required to cast light immediately on the present case.

&htab;449.&htab;In its communication of 25 April 1989, the Government states that it regrets that the decisions adopted by the Committee continue to consider actions taken by the Public Prosecutor under criminal law as violations of freedom of association, when they were taken because of repeated offences committed by persons attempting to undermine internal state security and the national economy and to paralyse the electoral process leading up to the elections on 7 May of the current year. In this respect, it is particularly amazed by the fact that the opinion put forward by the Committee on Freedom of Association implies that the temporary confiscation of goods and the safeguarding of some local premises of employers' organisations are actions of an illegal and arbitrary nature; these actions were ordered by the authorities who are carrying out preliminary proceedings because of offences committed by officials of these organisations. This was the case of the premises in which the Chamber of Commerce, Industries and Agriculture and the Trade Union of Industrialists of Panama operated; when a search of these premises was ordered by the Public Prosecutor, a large quantity of equipment, printed matter and other goods used to undermine state security were found. This does not conform with the objectives which a trade union association - or, in this case an employers' association - should try to attain for the good of its members and society. Furthermore, it must be pointed out that the legal situation as regards the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama should be considered within the context of criminal proceedings which have not yet finished; consequently, any decision concerning this situation should be taken at the appropriate stage in accordance with normal proceedings.

&htab;450.&htab;As regards the Committee's conclusions concerning the criminal and administrative proceedings against communications media (press and radio), the Government states that these media were used to broadcast and publish false information against the national economy and the internal state security and called for disruption of public law and order and civil disobedience. These proceedings were carried out in strict application of criminal, procedural and administrative regulations in force; their progress will depend to a great extent on the way in which those concerned make use of the legal channels open to them under the law. The Committee stresses that the temporary confiscation of equipment used to commit crimes - i.e. publishing material in the case of the press - in no way prevents the communication activities of any association nor prevents the full exercise of freedom of association, as there are other communications media (the press, radio and television) to which any person or association wishing to use them always has unlimited access, provided they do not commit any of the offences defined in penal law.

&htab;451.&htab;The Committee notes that the Government regrets the recommendations taken in its last report since, according to the Government, the Committee continues to consider actions taken by the Public Prosecutor in accordance with penal law (occupation of the premises of two employers' organisations, confiscation of their goods and closure of means of communication used by the employers' organisations) as violations of freedom of association; it states that these actions were taken because of repeated offences committed by persons attempting to undermine internal state security and the national economy and to paralyse the electoral process leading up to the elections on 7 May 1989.

&htab;452.&htab;In this respect, the Committee feels bound to point out that when examining the allegations submitted in this case, it has always proceeded with the maximum caution and objectivity, taking fully into account the Government's statements - especially when it insisted that the measures objected to in the allegations were taken within the process of criminal proceedings. On this point, the Committee recalls that, concerning the trials of ten employers' officials, it merely requested information on the specific allegations brought against each of those concerned and expressed its concern about the seriousness of the situation, precisely so that it might have enough information to be able to reach a decision on this case. The Committee regrets that in spite of its repeated demands, it has not received this information and that the Government continues merely to make statements of a general nature. Consequently, as it did at its previous meeting, the Committee reiterates its request for information and 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. As regards the continued occupation of the Chamber of Commerce and the Trade Union of Industrialists of Panama and the confiscation of their goods, the Committee points out that these organisations have been deprived of their premises for more than one year now and considers that the fact that some employers' leaders from these organisations are under investigation does not justify that these organisations and their members are deprived of a basic means whereby they may carry out their normal activities. Finally, as regards the closure of major communications media used regularly by the employers' organisations, the Committee cannot accept the Government's statement to the effect that such organisations may use other communications media existing in the country since it may be wondered if the employers' organisations are of the same persuasion as the communications media existing at present and if they would have the same facilities of access to these media as to those which have been closed. The Committee therefore upholds its previous conclusions and recommendations on all these points.

&htab;453.&htab;As regards the alleged arbitrary detention of the employer's leader Alberto Conte, the breaking into, searching and closure of his enterprise and the confiscation of his goods, the Committee notes that according to the Government such actions are provided for in procedural law and that they were carried out as part of a criminal investigation, initiated by the Public Prosecutor after it was discovered that the offices of Mr. Conte's enterprise had been used as a centre for editing and publishing material which called for the disruption of public law and order with a view to undermining the security of the state's powers - punishable under section 301 of the Penal Code. The Committee notes that Mr. Conte was released on bail on 23 December 1988 and that he left the country on the same day; however, they note that a new detention order was issued against him later. In order to be in a position to reach a decision on these allegations, the Committee requests the Government to send it a copy of the publications found in Mr. Conte's factory and to inform it on the stage reached in the proceedings against him.

&htab;454.&htab;As regards the allegation that the employers' leader Roberto Brenes was deported to Miami on 20 December 1988 on the grounds of having carried out subversive activities and that this was presented by the authorities as a voluntary exile (see 262nd Report, Case No. 1419, paragraph 253), the Committee notes that the Government states that on 20 December 1988, Roberto Brenes was detained for less than 12 hours to make a statement and that there was serious evidence of his participation in activities against internal state security. According to the Government, there are no criminal proceedings pending against Roberto Brenes. As no charges were brought against Roberto Brenes, the Committee regrets that he remained in detention for nearly 12 hours and stresses that such measures may create an atmosphere of intimidation and fear prejudicial to the normal development of occupational organisations' activities, as provided for under Convention No. 87. Furthermore, the Committee notes that the Government has denied the allegation that, after his detention, the employer's leader Roberto Brenes was obliged by force to take the plane to Miami.

&htab;455.&htab;Finally, the Committee regrets that the Government has not replied to the other allegations pending (arrest and fining of the journalist Alcides Rodríguez, and violence against the leaders of the Chamber of Commerce and their enterprises). Consequently, the Committee reiterates its previous conclusions and recommendations in this respect.

&htab;456.&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 since its last meeting there have been no basic improvements in the situation of employers' organisations and their leaders in Panama, as evidenced by the prosecution of ten employers' leaders, 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 of these specific acts which, in each case, led to the trials pending against nine of the ten employers' leaders (Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zuñiga, Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán and Alberto Boyd), and on the stage reached in the corresponding proceedings. It presses the Government to send this information as a matter of urgency and to send it copies of the publications (subversive, according to the Government) produced and found at the enterprise of the employer's leader Alberto Conte and provide information on the stage reached in the proceedings against this leader. It stresses that respect for due process of law should not preclude a fair and rapid trial.

(c) The Committee urges the Government once again 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 once again 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 regrets that the employers' leader Roberto Brenes remained detained for 12 hours. As no charges were brought against him, the Committee stresses that measures of this type infringe the rights contained in Convention No. 87 and may create an atmosphere of intimidation and fear prejudicial to the normal development of occupational organisations' activities.

(f) The Committee requests the Government once again to send its observations on the allegations concerning the arrest and fining of the journalist Alcides Rodríguez and the violence against the leaders of the Chamber of Commerce and their enterprises.

&htab;457.&htab;The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 17 October 1988. The Latin American Central of Workers (CLAT) presented its complaint in a communication dated 25 January 1989, supported by a letter dated 25 January 1989 from the World Confederation of Labour (WCL). The Government replied in communications dated 2 February and 24 April 1989.

&htab;458.&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;459.&htab;The ICFTU alleges that on 19 September, three members of the Executive of the Trade Union of Water and Electricity Board Workers (SITIRHE) were arrested, as they were considered subversive elements for having organised successive strikes to obtain wage increases and better working conditions. The trade unionists affected by these arbitrary measures are Fernando del Río Gaona (supervisor of electric cables, organisational secretary and former secretary-general of the trade union), Luis Enrique Hurtado Jaramillo (civil engineer and press and publicity secretary of the trade union) and Angel Julio Corvalán Sánchez (unions' defence and labour under-secretary of the trade union).

&htab;460.&htab;The ICFTU adds that previously, on 16 August 1988, Isaac Rodríguez, Secretary-General of the same trade union (SITIRHE), was arrested; he was severely beaten during his detention.

&htab;461.&htab;Furthermore, in connection with the same occurrences, the CLAT and the WCL allege in their communications of 25 and 30 January 1989 that the authorities intervened following legitimate claims decided upon democratically by the workers grouped together in the Trade Union of Water and Electricity Board Workers (SITIRHE). This resulted in the premises of the trade union being searched and closed by the national guard and the trade union funds confiscated; some 350 workers and 50 officials were arbitrarily dismissed and more than 80 members of the trade union arrested. This gave rise to a permanent persecution campaign against the trade union officials, and the secretary-general of the organisation has been in exile in Spain since November 1988. The WCL and CLAT point out that the trade union officials, Messrs. Fernando del Río, Hurtado and Corvalán were arrested and subsequently released.

&htab;462.&htab;In its communication of 28 February 1989, the Government states that the allegations concerning the arrest of the above-mentioned trade union officials are totally devoid of truth, since they disclaim any link between these persons with the criminal offences committed that seriously endangered collective security and the internal integrity of the State. These events occurred during violent actions, which were mainly instigated by organisations of a political nature in their attempt to bring about a change in the constitutionally established order.

&htab;463.&htab;The Government points out that the consequences of these criminal actions were of such magnitude that the electric power supply was totally cut off throughout the Republic for more than 24 hours; this was due to criminal acts of sabotage and caused irreparable damage - even loss of life. The respective inquiries determined that Messrs. Isaac Rodríguez, del Río, Hurtado and Corvalán were unequivocably linked with these crimes and, consequently, the investigating official ordered their preventive detention in accordance with the standards laid down in the Penal Code. Indeed, section 235 of the Penal Code deals with the standards transgressed; it states that "a person who damages or puts out of action pipes, dams or other devices designed for irrigation, conveying water and producing or carrying electricity or other sources of energy shall be punished by imprisonment of three to eight years. If the death of one or several persons is caused by the actions described above, the penalty provided for under section 232(o) shall apply".

&htab;464.&htab;The Government also adds that Messrs. Rodríguez, del Río, Hurtado and Corvalán, taking advantage of their position as trade union officials, were involved in promoting and conducting political activities, thus flouting basic objectives to bring about the good of workers as a whole - and committed crimes against the internal integrity of the State. However, the Government states that the investigating official, who is at present entrusted with carrying out inquiries into this case, released these persons, although these inquiries have not yet ended.

&htab;465.&htab;In its communication of 24 April 1989, the Government gives the following account of the events: on 16 March 1988, Isaac Rodríguez, Secretary-General of the Trade Union of Water and Electricity Board Workers (SITIRHE), gave the order through the Board's radio, together with other trade union officials and members, to shut down all the electricity power stations, thus leaving the entire country without electricity for 24 hours. The following day, there was a tripartite meeting at which the SITIRHE agreed to give the order to restore electricity but this was not carried out since it was necessary to call upon technical staff not working in the electricity power stations; this caused a delay of up to 54 hours in some cases because Isaac Rodríguez' original instructions had not only been to cut off the electricity but also to tamper with the system and sabotage the machinery enabling it to be quickly restored. At the same time the SITIRHE officials were carrying out their strike on 16 March 1988, there was an attempted military coup headed by a colonel who had permanent contacts with Isaac Rodríguez and even had a meeting with him on 15 March 1988. Similarly, on 16 March 1988, there was a demonstration in the city of Panama with a massive turnout of workers convened by the SITIRHE; and there is documentary evidence that Isaac Rodríguez and other trade union officials were handing out arms on this occasion. An arrest warrant was issued against Isaac Rodríguez on account of his participation in the events of 16 March 1988 and he was charged with having committed offences endangering collective security and the internal integrity of the State. However, he was not arrested and remained hidden for more than two months. The Attorney General also ordered the arrest of Fernando del Río, Luis Enrique Hurtado, Angel Julio Corvalán and other trade union officials and militants on account of the events of 16 March. It was impossible to arrest these persons because they remained hidden. According to the documentation sent by the Government, a total of 84 arrest warrants were issued.

&htab;466.&htab;On 16 August 1988, Isaac Rodríguez led a group of workers who, acting on their own initiative and failing to give previous notice or seek any authorisation, cut the supply of electricity to the National Television Channel 2 (ERSA), causing significant material damage, disrupting public law and order and obstructing the public highway, using vehicles belonging to the Board. On account of this, Isaac Rodríguez and the other workers were arrested and later released. None of these workers showed any signs of having been beaten; in the particular case of Isaac Rodríguez, this is borne out by the forensic medical report.

&htab;467.&htab;Throughout the month of September, the campaign to discredit the IRHE authorities and the National Government continued. The trade union officials, Messrs. del Río, Hurtado and Corvalán called upon the community, by means of pamphlets and radio announcements, not to pay their electricity bills. On 19 September, they held meetings in the workplaces at Poli, Las Tablas and Torremolinos, where they ordered the workers to stop work without justified grounds, thereby infringing the provisions contained in the Cabinet Decrees Nos. 6 and 23 of March 1988; these state that the IRHE, as other public service institutions, is an enterprise guaranteeing national security, thus authorising the army to intervene if the provisions contained in the said legislation are violated. In view of the circumstances, Messrs. del Río, Hurtado and Corvalán were arrested on the basis of the above-mentioned Cabinet Decrees and the arrest warrant issued after the events of 16 March 1988. Mr. Rodríguez Armuelles sought refuge in the headquarters of the Papal Nunciature until the date when he left the country for Spain as a political refugee with the consent of the authorities who gave him a safe-conduct, in spite of the fact that a warrant for his arrest had been issued and that he was charged with the above-mentioned offences. In November 1988, Fernando del Río was released; Luis Enrique Hurtado and Angel Julio Corvalán were released in December and proceedings are still pending against them. They are all charged with having committed offences against collective security and the internal integrity of the State, with abusing authority and infringing the duties of public service, with usurping public functions and committing acts against public authorities, and more specifically with infringing sections 235, 287, 301, 305, 306, 338, 343 and 344 of the Penal Code.

&htab;468.&htab;Furthermore, proceedings were instigated to authorise the dismissal of Mr. Rodríguez, who enjoyed trade union immunity in his capacity as a trade union official; the Higher Labour Court authorised his dismissal on the grounds that he had participated in the events of 16 March 1988.

&htab;469.&htab;The Government concludes by pointing out that the judicial proceedings undertaken were at no time prompted by the trade union activities of the persons concerned but by serious offences against state security; there can therefore be no question of infringement of Conventions in the field of freedom of association.

&htab;470.&htab;In the present complaint, the complainant organisations have alleged that after strikes carried out in the electricity sector to obtain wage increases and better working conditions, the authorities arrested four trade union officials and 80 members of the Trade Union of Water and Electricity Board Workers (SITIRHE), searched and closed the trade union premises, confiscated trade union funds and arbitrarily dismissed 50 trade union officials and 350 workers.

&htab;471.&htab;As regards the detention of four trade union officials and 80 trade unionists, the Committee notes that there is a contradiction between the Government's and the complainant's accounts of the grounds for these detentions. According to the Government's reply, the arrests occurred because common law crimes had been committed and mainly because the electricity supply had been cut off without warning throughout the country for 24 hours; furthermore, this action had been accompanied by acts of sabotage and had had political objectives because on the same day there had been an attempted military coup by a colonel who was in permanent contact with the secretary-general of the SITIRHE. On the other hand, the complainant organisations allege that trade union officials and trade unionists in the elctricity sector were arrested because they had taken part in a strike to obtain wage increases and better working conditions. Furthermore, it is not clear whether the strike in the electricity sector was legal on the day the supply of electricity was cut off because, although the Labour Code authorises strikes in the electricity sector - provided that notice is given and that a minimum service is maintained (sections 486 and 487) - the Government pointed out that on 6 and 23 March 1988 the Cabinet had issued Decrees banning strikes in this sector. However, the Government did not send copies of these Decrees; neither did it provide information on the reasons why the general regulations on strikes were amended with respect to the electricity sector.

&htab;472.&htab;In view of the marked contradictions between the allegations and the Government's reply and the lack of information on several points, the Committee feels that it has not been presented with enough information to reach a conclusion on the allegations concerning the arrests of trade union officials and trade unionists. Consequently, noting that the four trade union officials in question are on bail (one of them is in exile in a foreign country) and that proceedings against them are under way, the Committee requests the Government to send it the text of the judgement handed down in this case. The Committee also requests the Government to provide details on the stage of the proceedings against the other 80 trade unionists who were arrested, to mention whether they have been released and to provide the text of the judgement that might be handed down in their case.

&htab;473.&htab;Finally, the Committe regrets to note that the Government failed to reply to the other allegations (the searching and closure of the premises of the SITIRHE, the confiscation of its funds and the arbitrary arrest of 50 trade union officials - the Government only referred to the dismissal of the official Isaac Rodríguez - and of 350 workers). The Committee therefore requests the Government to reply to these allegations.

&htab;474.&htab;In view of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to send it the text of the judgement handed down in the case against the four trade union officials (at present on bail) and 80 trade unionists accused of having caused the cut in the electricity supply throughout the country for 24 hours by carrying out acts of sabotage, and of having committed other crimes. The Committee also requests the Government to inform it of the stage reached in the corresponding proceedings and to mention whether the 80 trade unionists detained have been released.

(b) The Committee regrets that the Government failed to reply to the allegations concerning the searching and closure of the premises of the SITIRHE, the confiscation of its goods and the arbitrary arrest of 50 trade union officials and 350 workers. The Committee urges the Government to reply to these allegations in the immediate future.

&htab;475.&htab;The complaints in Case No. 1434 were examined by the Committee at its November 1988 meeting, when it submitted an interim report to the Governing Body, which was based to a large extent on the direct contacts mission carried out by Mr. Philippe Cahier in Colombia from 31 August to 7 September 1988. [See 259th Report of the Committee, paras. 589 to 678 (and annexes) approved by the Governing Body at its 241st Session (November 1988).] These complaints were submitted by the following organisations: the Workers' Central Organisation (CUT), the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Organisations of the Teaching Profession (WCOTP) and the World Federation of Trade Unions (WFTU). Subsequently, the Government sent new observations in communications dated 14 March and 17 May 1989.

&htab;476.&htab;The complaints concerning Case No. 1477 are contained in communications from the CUT (26 and 28 October and 3 and 16 November 1988; 23 and 24 February, 29 March and 7 April 1989), the ICFTU (28 October and 8 November 1988; and 3 February and 6 March 1989), the WFTU (10 November 1988 and 17 March 1989), the WCOTP (23 November 1988; and 20 February, 31 March and 14 April 1989), and the Trade Unions International of Public and Allied Employees (2 and 20 March 1989). The Government replied in communications dated 26 and 31 October and 14 December 1988, and 4 April and 24 May 1989.

&htab;477.&htab;Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;478.&htab;When the Committee examined this case at its November 1988 meeting, it made the following recommendations on the allegations pending [see 259th Report, para. 678]:

&htab;The Committee is very deeply concerned by the dramatic situation of violence facing Colombia which generally makes conditions of normal existence impossible for the population and in particular impedes the exercise of trade union activities.

&htab;As regards Case No. 1434, the Committee is shocked by the very high number of murders and disappearances, and expresses its particular preoccupation in noting that such a high number (over 200 since 1986) of trade union leaders and unionists, mostly linked to the CUT, the most representative organisation in the country, were among the victims. The Committee notes that the Government has adopted a series of positive measures to counter this violence, but observes that these measures have not met with the desired results.

&htab;The Committee requests the Government to adopt vigorous measures at the national level to dismantle the so-called paramilitary groups active throughout the country which, according to the mission report, are the authors, along with hired assassins, of the majority of the murders of trade unionists. The Committee trusts that these groups and persons responsible for financing them will be prosecuted to the full extent of the law as soon as possible, and requests the Government to keep it informed on all these points. Likewise, the Committee requests the Government to communicate the results of the investigation of the paramilitary groups undertaken by the Deputy Attorney of the armed forces.

&htab;The Committee requests the Government to supply full information concerning the existence and content of provisions in force concerning the so-called "self-defence committees" (composed of members of the civilian population in areas where guerillas are present, which have certain defence functions, but also collaborate with the army in military operations), on any monitoring that may exist concerning their actions and any sentences that have been handed down for abuse of power.

&htab;Considering the high degree of impunity enjoyed in fact by those responsible for most of the murders of trade unionists, the Committee requests the Government to take the necessary measures to strengthen substantially the human and financial resources of the judiciary, and to keep the Committee informed in this respect. &htab;The Committee requests the Government to send observations concerning the alleged murders of 32 trade unionists in respect of whom no information has been received [see Annex I to 259th Report] and to keep it informed of developments in the judicial inquiries under way into the murders of the trade unionists identified in the Government's earlier replies.

&htab;As regards the disappearance of trade unionists, the Committee notes that there is no official record of the disappearance of Jaime Casas Rojas, and that judicial inquiries have been opened into the disappearances of Marlene Medina Gómez, Luis Alberto Builes, Alvaro Usuga, Marina Elvia Díaz, Marcial Alonso González and Christian Roa. The Committee requests the Government to keep it informed of developments in these judicial inquiries and to send its observations concerning the disappearance of trade unionist Luis Villadiego, Gabriel Holguin and Lucio Serrano Luna.

&htab;The Committee requests the complainant organisations to provide additional information concerning the alleged murder of Aníbal Díaz and the disappearance of Jaime Casas Rojas and the arrest of Leonardo Chacón and Blanca Vera, since the Government states that it has no record of these events.

(b) &htab;The Government's reply

&htab;479.&htab;In its communication of 14 March 1989, the Government provides the following information in connection with some of the inquiries:

- Melba Amariles Hernández, Arturo Salazar, Gustavo de Jesús Callejas, Héctor Alonso Loaiza, Pablo Emilio Córdoba, Alonso Miguel Lozano, José Lilealdo Herrera Cano, Hamet Consuegra Llorente, Juan José Hérnández D. and Luis Antonio Martínez D. Those responsible for the murder of these persons have not been identified.

- Concerning the murder of Domitila Cigue, the investigation is being conducted by the 17th Criminal Examining Magistrates' Court of Santa Rosa de Viterbo (Bogotá) and, as a safety measure, the preventive detention of several people has been ordered; however their names may not be released because they are under investigation.

- Concerning the murder of Asdrúbal Jiménez Vacca, SINTAGRO adviser, statements have been taken from the sister of the deceased to try and obtain fresh information on the crime.

&htab;480.&htab;In its communication of 17 May 1989, the Government annexes three Decrees signed on 19 April 1989 by the President of the Republic (Nos. 813, 814 and 815) providing for: (1) the establishment of a commission mandated to evaluate and co-ordinate the actions against the death squads and other groups of hired assassins and of "private justice"; this commission includes the Ministers of Defence, of Justice and of the Government, the Chief of the Administrative Security Unit, the Chief Commander of the armed forces and the Director-General of the National Police; (2) the constitution of a special armed corps, comprised of 1,000 members of the National Police, to ensure public order against the death squads and other groups of hired assassins and of "private justice"; (3) the restriction of the population's collaboration with the armed forces to non-aggressive activities; under this Decree, civilians are expressly prohibited from giving, carrying and using firearms exclusively reserved for the armed forces.

&htab;481.&htab;The complainant organisations allege that given the difficult period through which Colombia is passing, especially the working classes, the Workers' Central Organisation (CUT) submitted a list of claims to the Government on 18 May 1988 which, amongst other things, demanded that the Government should undertake a policy to protect trade union and popular leaders attempting by all possible means to dismantle paramilitary groups which have caused so many deaths amongst the ranks of trade unions and people's movements; it also requested an overall increase in wages and the freezing of prices of basic goods for the shopping basket for a specific period of time. As the Government failed to show any interest in discussing this list of claims, the CUT, the Workers' Confederation of Colombia (CTC), the General Confederation of Labour (CGT) and other trade union organisations called a general strike for 27 October 1988. The Government responded by issuing Decrees Nos. 2201 and 2200 on 25 October 1988 which, in particular, contain the following:

&htab;Whilst the present state of siege continues, any trade union or trade union federation or confederation that organises, conducts, promotes, encourages or incites in any way outside the law, the total or partial, continuous or staggered stoppage of normal activities of an industrial or any other nature, may have their legal personality suspended by the Ministry of Labour and Social Security.

&htab;Whilst the present state of siege continues, any one who organises, conducts, promotes, encourages or stimulates in any way outside the law the total or partial, continuous or staggered stoppage of normal activities of an industrial or any other nature, shall be liable to imprisonment from 30 to 180 days; this sentence may be imposed by a governor, intendant, commissioner or mayor, on the basis of legal grounds. &htab;Any penalty imposed in accordance with the present Decree shall be considered just grounds for the termination of a labour contract.

&htab;482.&htab;The complainant organisations add that on the basis of these provisions, the Ministry of Labour and Social Security suspended the legal personality of the following organisations: Electricity Workers' Trade Union (SINTRAELECOL), Zipaquira Salt Mineworkers' Trade Union (SINTRASALINAS), Trade Union of Workers at the Mezclas Centre (SINTRAMEZCLAS), Trade Union of Workers in the Glass and Allied Industries (SINTRAVIDRICOL), San Juan De Dios Hospital Workers' Trade Union (SINTRAHOSPITAL), Agricultural Workers' Trade Union (SINTRAGRO), National Banana Industry Trade Union (SINTRABANANO) and National Food Industry Workers' Trade Union (SINTRAINAL). The complainant organisations also sent as an annex a list of 204 trade unionists and workers arrested on account of the general strike (the number which, at the end of November 1988, was reduced to 89), some of which were sentenced to 180, 150 and 60 days' imprisonment. The following were amongst those detained: Jasafat Tarazona, President of the Trade Union Federation of Santander, César Carrillo, President of the Petroleum Workers' Trade Union of Santander, Ligia Caceres, executive member of the National Federation of State Workers and Employees, Bernardo Blanco, member of the Trade Union of Agricultural Workers of the Department Norte de Santander, Orlando Mesa, Conzalo Gomez and Edilberto Ramirez, members of the Textile Workers' Trade Union, Eduardo Yando and Guillermo Chitan, members of the Inventors' Trade Union, and Ramón Sinisterra, member of the Sugar-Cane Trade Union. The complainant organisations point out that it is up to the judicial authorities to suspend the legal personality of trade union organisations and to impose prison sentences and not the administrative, military or police authorities. The complainant organisations also point out that many trade unionists and trade union officials were dismissed by virtue of the above-mentioned Decrees (the complainants enclose a list of 76 persons dismissed).

&htab;483.&htab;Furthermore, the complainant organisations, after pointing out that the paramilitary groups are continuing to murder trade union members and officials with total impunity, allege the following murders and disappearances:

- JOSE MANUEL HERRERA, deputy member of the National Executive of SUTIMAC, worker in the Cementos del Nare enterprise in the Caracolí municipality, murdered by hired assassins while he was going to his mother's house with his family in the district of La Sierra, Nare municipality (Antioquia). This gave rise to a strike which started at 9 p.m. on 4 September in the Cementos del Nare enterprise and the Caracolí quarries.

- CARLOS JAIME RINCON, activist and member of SINTRAELOCOL-Bucaramanga, 27 years of age, murdered by hired assassins in Bucaramanga (Santander) on 13 September 1988 whilst returning home. - ARSENIO OSORIO, member of SINTRAMONARK, murdered on 23 September 1988 in the town of Cali (Valle) by two motor-cyclists; he was riddled with bullets and died before reaching hospital.

- HARVEY MURIEL VELASCO, member of the Teachers' Trade Union of Risaralda, Popular Front militant, murdered by four hired assassins in his classroom, in Vereda la Argentina on 4 October 1988.

- ANIBAL DE JESUS ECHEVERRIA (40 years of age) and MANUEL GILLERMO QUIROZ (23 years of age), members of SINTRAGRO, workers on the El Guineo farm; murdered by a hired assassin in a jeep on 11 October 1988.

- ARGELIO NOVOA, member of SINDEJORNALEROS, candidate for the next elections to the Executive, worked on the Rita María estate in the municipality of Apartadó (Antioquia). On the pretext of searching for arms, five hired assassins riddled him with bullets in front of his home on 13 October 1988.

- ALVARO FAJARDO, head of Núcleo, trade union activist and member of the co-operative movement; murdered by Lieutenant Danil Rodríquez, commander of the police station in the municipality of San José de Isnos (Huila), on 14 October 1988.

- CESAR CASTRO, member of the National Peasants' Association, ANUC, was murdered on 15 October 1988.

- CARLOS CONDA, deputy member of the Executive of the Agricultural Workers' Trade Union of Caquetá; murdered by two hired assassins on a motor-bike at 9 a.m. in Puerto Rico Caquetá on 15 October 1988.

- ELECTO FLOREZ, treasurer of SINTRABANANO; murdered on 15 October 1988 when he was travelling with his wife from Carepa to Apartadó at 7.15 p.m. by two hired assassins on a motor-bike. This crime was committed near the Voltígeros batallion.

- ALCARDO PATINO, member of SINTRABANANO, who worked on the Corralito estate in the municipality of Chigorodó (Antioquia); murdered by hired assassins on 16 October 1988.

- ALBERTO JOSE PALMERA, former President of the Deputy Executive of SINTAGRO in Chigorodó, employed on the Guatapuri estate; shot and killed outright on 17 October 1988 several minutes after leaving the barracks; and MANUEL PEÑATE, wounded in the face on the same day, managed to get by himself to an ice-cream parlour to escape from hired assassins and from there to the Chigorodó hospital; he was then taken by a policeman in an ambulance to the Apartadó hospital, where he was found dead with about six bullets in his head. Manuel Peñate was a member of SINTAGRO and worked on the Ethel estate in Turbo. - HERMELINDA CASTRO, member of the Executive of SINTRAPOY, employee of Inderena, engaged in the Carare-Opón forestry project; murdered by a hired assassin from MAS on 20 October 1988.

- FELIPE GALEANO, departmental ANUC official and FENSUAGRO official; murdered by six persons who came to his home at 5 p.m. on 23 October 1988.

- RISARALDA VEREDA ARGENTINA, trade union activitist from the Pereira district; murdered on 26 October 1988.

- OSCAR CHAQUER, teaching staff official in Córdoba, member of ADEMACOR; murdered by hired assassins in Montería (Córdoba) on 26 October 1988.

- FRANCISCO RENTERIA, murdered on 27 October 1988, when a ship from the national navy fired on the barge transporting workers from ASODIMBRAS and SINDEBRAS home.

- EMIRO TRUJILLO and LEONARDO LINDARTE CARVAJAL, distinguished professors of the Faculty of Public Health of the University of Antioquia. Mr. Trujillo was Vice-President of the Association of Teachers at the University of Antioquia. They were murdered by DAS agents in Medellín on 31 October 1988.

- RAFAEL ATEHORTUA, President of the ADIDA Deputy Executive in Tamesis; murdered by hired assassins at 7 a.m. in the classroom in Palermo (district of Tamesis) on 8 November 1988.

- CLIRIO GRACIANO, member of the Assembly of Delegates of ADIDA for the Yali municipality; murdered by hired assassins on motor-bikes in Yali (Antioquia) on 9 November 1988.

- GABRIEL LOPEZ (57 years of age), ANUC activist, peasant farmer; murdered on 13 November 1988 at 7 p.m. in his home in San Pelaya (César).

- JOSE PEZOTE, ASINORT activist, teacher in Ocaña (Norte de Santander); murdered on 22 November 1988.

- RUBEN DARIO MEJIA, teacher, President of the ADIDA Deputy Executive of the municipality of Bolívar (Antioquia); shot and killed on 1 December 1988 by four hired assassins at 6 p.m. when he was in the municipality's park.

- ANDRES MOZO, treasurer of SINTRAGRO, member of the National Executive of the CUT; murdered on the Suerte No. 1 estate in Apartadó (Antioquia) at 9 a.m. on 3 December 1988.

- ANTONIO VEGA HERNANDEZ, member of SINTRAINDUPALMA; riddled with bullets when he was at the door of his house in San Alberto (César) on 27 December 1988. - FERMIN MELENDEZ ACOSTA, ADEMACOR official and fighter for the cause of workers in the teaching profession, President of FESTRACOR and member of the National Executive of the CUT; murdered by hired assassins on 31 December 1988 when he was on the terrace of his house.

- FRANCISCO DE PAULA PEREZ CASTRILLON, teacher belonging to ADIDA; murdered by hired assassins in Medellín (Antioquia) on 1 January 1989.

- PEDRO SOLANO, worker at Indupalma, member of SINTRAINDUPALMA; shot by unknown persons in the 23rd district of Agosto de San Alberto (César) on 1 January 1989.

- LUIS SIERRA, member of the National Executive of SINUVICOL, disappeared in the month of December and found dead on 5 January 1989.

- ANTONIO MARTINEZ, member of the Executive of SINTRATEXTIL and of the Committee of the Federation of Textile Workers in Antioquia, former member of the Executive Committee of FEDETA; murdered on 5 January 1989 when he was travelling by bus from his home to the Rionegro textiles enterprise where he worked; he was forced to leave the bus and riddled with bullets in front of his colleagues by a group of six hired assassins.

- MAURICIO ROMERO and HUMBERTO RUIZ (engineers), GUSTAVE PEREZ and GERARDO UPEGUI (technicians); murdered on 5 January 1989 in the Cementos del Nare enterprise (quarries section). Patricia Orejuela and Stella Martínez, members of the domestic staff, were seriously injured during these events. The workers in the Cementos del Nare enterprises in La Sierra and Caracolí stopped work to protest against these murders.

- ISIDRO CABALLERO DELGADO, teacher belonging to the Teachers' Trade Union of César; he was arrested on 7 February 1989 by soldiers in the district of Guaduas in San Alberto and has been missing since then. The army denies his arrest.

- JORGE MARTINEZ, President of the Agricultural Workers' Trade Union; murdered by unknown persons on 22 January 1989.

- JULIO ELIECER AGUDELO, treasurer of the Trade Union of Metallurgical Enterprises in Palmira; disappeared on 3 February 1989 and his body was found on 23 February in the Calima lake in the town of Cali.

- FRANCISCO DUMAR, Vice-President of the Avianca Trade Union; murdered on 13 February in the department of Córdoba by two hired assassins who shot him when he was arriving at work in the morning. - LUIS EDUARDO YAYA, President of the Trade Union Federation of Workers of Meta and member of the National Executive of the CUT; murdered in Villavicencio (Meta) on 23 February 1989 when he was leaving his home.

- FERMIN MELENDEZ, President of FESTRACOR and teachers' official in Córdoba; murdered in February 1989.

- JOSE MARIA CASTILLO, President of the Agricultural Workers' Trade Union of Arjona (Bolívar) and Vice-President of the Deputy Executive of the CUT in the department of Bolívar; murdered on 20 March 1989 in the town of Cartagena (Bolívar).

- HERNAN VARGAS CALDERON, teacher in the San Pablo college, Currillo, province of Coqueta; murdered on 3 April 1989 after having being threatened with death on several occasions. He is the second teacher to have been murdered in this college.

- LUIS ALBERTO CARDONA, university professor; murdered on 4 April 1989 in Pereira (Santa Rosa de Cabal), when he was on his way to give a lecture in the university of Santa Rosa de Cabal. He was President of the Human Rights Committee of Caldas and was recently awarded the Nelson Mandela peace medal; he was also a counsellor to the Patriotic Union in Chinchiná and adviser to various trade union organistions for a long time.

- EDISON PACHECO, President of the Federation of Workers of Córdoba, subsidiary of the CUT; murdered on 6 April 1989 in the town of Montería; his wife was hit by bullets and is in a serious condition.

- FERNANDO MESA CASTILLO, teacher at the national secondary school in Cartago and the technological university of Pereira; murdered on 7 April 1989.

&htab;484.&htab;The complainant organisations enclose as an annex a copy of a confidential report from the Administrative Department of Security (DAS), which states that:

The hired assassins and drug traffickers operating in the district of Puerto Boyacá (Boyacá) use the "Association of Peasants and Cattle Raisers of El Magdalena Medio - ACDEGAM" as their cover, behind which they carry out their illegal activities ... The ACDEGAM executive is made up of the following officials: Henry Pérez, President; Gonzalo de Jesús Pérez, Vice-President and father of the former; Luis Rubio, Mayor of Puerto Boyacá. This organisation is made up of more than 300 armed men who move between the municipalities of Puerto Boyacá and Otanche (Boyacá), Cimitarra and Puerto Olaya (Santander), La Dorada (Caldas) and Puerto Berrio (Antioquia), thanks to the vehicles (more than 100) they have at their disposal - including jeeps, vans, cars, lorries and light aircraft. The group is supported by drug traffickers, cattle ranchers and farmers who, anyway, give over part of their land to the growing of coca leaves; this activity is covered up by other legal farming activities. Several high-ranking officials in El Magdalena Medio co-operate with ACDEGAM, of which particular mention should be made of the following: the Regional Attorney of Honda (Tolima); the Commander and Deputy Commander of the military base of Puerto Calderón; the head of the police in La Dorada (Caldas); head of the police in Puerto Boyacá (Boyacá); the Mayor of Puerto Boyacá (Boyacá) ... The gang of common criminals which are known throughout the region as "Death to Kidnappers (MAS)" is subsidised by several members of the so-called Medellín Cartel ... (of which names are quoted). The following persons are middle-ranking officials in the organisation of hired assassins: ... an army sergeant ...

&htab;The DAS report continues by giving details about the training grounds of hired assassins and their whereabouts.

&htab;485.&htab;Finally, the complainant organisations allege the following acts of violence and arrests:

- On 6 October 1988, there was an attempt on the life of Mario Montes de Oca, member of the Executive of the Trade Union of Workers in Risaralda in Quinchia; he was injured.

- On 9 October 1988, unknown persons fired from a car at the teacher Hugo Arnulfo Escobar, leader of the Single Trade Union of Teachers of Valle in the municipality of Jamundí (Valle del Cauca).

- On 23 October 1988, police officers attacked workers travelling in trade union buses, injuring Adela Caicedo, Mármol Isaac and Parra Fausto.

- On 25 October 1988, bombs exploded in the headquarters of the Teachers' Trade Union of Santander and the Sugar-Cane Workers' Trade Union of Palmira. Some weeks before, on 6 October 1988, a ten-kilo bomb was discovered in the headquarters of the Teachers' Trade Union of Córdoba, which was timed to go off during the meeting of the union executive; fortunately, the bomb was discovered in time and defused.

- In October 1988, the CUT publicly denounced the harassment of Angela Tobón Puerta and Jimmy Abdala Oliveros, trade union officials in Antioquia; after the calling of the general strike on 27 October, they had been followed and harassed by armed civilians and received threatening calls at their homes.

- Ana Inés Candela (Vice-President of the Trade Union of the National Provident Fund) and Maritza Palencia (employee of the district administration of this Fund in Bogotá and member of the Trade Union of Employees in the special district of Bogotá) were accussed of having links with the guerrillas. During the trial, the judges dismissed the charges and ordered the persons concerned to be released. However, they are still being held in the Buen Pastor Prison in Bogotá, where they have been since 7 January 1989 (these allegations are contained in a communication dated 2 March 1989). - In March 1989, there was a terrorist attack against Alfonso Rodriguez, manager of the ECOPETROL Workers' Co-operative; a bomb was placed in his home.

- On the morning of 29 March, army troops from the military headquarters in Urabá arrested all of the workers on the Pan Gordito estate and others from the El Porvenir estate, both of which are in the municipality of Apartadó. More than 85 persons were arrested, including three SINTAGRO officials: Fernando Diaz, member of the national executive; Clímaco Herrera, member of the Carepa deputy executive; and Mario Ibarra, member of the deputy executive of Apartadó. The three officials were tortured, and after the workers of Urabá took action they were released on 30 March at 5 p.m. Mario Ibarra is seriously ill in hospital in Bogotá.

- On 7 April 1989, there was an attempt on the life of the treasurer of the Workers' Federation of Norte de Santander (FENOSTRA-CUT), Juan Bautista Patiño, during which his 18-year-old son was injured. This occurred in Pamplona and the shots were fired from a car.

- Officials of the Federation of Workers' Trade Unions (USITRAS), in Santander, have received death threats. These threats have been received by César Martínez, Rarid Florez and Alberto Gil, all officials of the Teachers' Trade Union of Santander, and Victor Lizcano, President of USITRAS.

- In Santa Marta, Magdalena, the Workers' Federation of Magdalena has received death threats against its trade union officials, Henry Taité, President of the Trade Union of Licorera, Juan Luis Gómez, Lurdes Manjarrés and Angel Manjarrés. The two latter persons are teachers' trade union officials.

(b) &htab;The Government's reply

&htab;486.&htab;In its communication of 26 October 1988, the Government encloses information published in the press on a document confiscated by the Colombian authorities according to which, during the strike organised for Thursday, 27 October, by the CUT and the CGT, the so-called "National Guerrillas' Co-ordinating Committee" was preparing a day of terrorism and planning all sorts of attacks and disturbances against public law and order - totally divorced from trade union matters. This document had unmasked a sinister terrorist plot involving the majority of guerrilla groups, organised by the "Simón Bolívar Terrorist Co-ordinating Committee". This plan set out: to call upon all sectors of the population and workers to engage actively in street fights and to antagonise the police; to deploy a large-scale "military action", by carrying out attacks against and sabotaging public bodies; before and during the general strike on Thursday, to install groups of agitators and carry out a vast campaign of psychological terrorism by means of anonymous telephone calls and false alarms, announcing the placing of explosives in various places; to extend terrorism to petrol stations, telephone exchanges, electricity networks and stations and airports, to oil pipelines, gas pipelines and other pipelines and to international enterprises; to weld, with synthetic materials, the locks of various businesses so that the employees could not go to work on that day; to blow up roads and destroy bridges, to scatter nails, block the main approaches to industrial complexes, prevent the mobilisation of troops and blockade municipal centres in order to cut off the supply of agricultural goods to towns; to draw the troops away to areas remote from urban centres in order to ambush them and attack the military bases which would consequently be less well guarded.

&htab;487.&htab;With its communication of 31 October 1988, the Government transmits the speech made by the President of the Republic, the day after the strike called by the trade union federations. Several extracts are given here below:

&htab;I am able to announce to you that we have defeated the enemies of our country. The measures of prevention taken by the national Government to maintain law and order today have been successful. Our institutions have shown renewed evidence of their strength. The test to which several violent small groups wished to put our democracy has been largely overcome.

&htab;The strike called by several trade union federations was not followed. The vast majority of the population preferred to fulfil their obligations and go to work. Although the subversive elements had planned various actions to destabilise the situation, there were no serious incidents. The intervention of the armed forces prevented any terrorist action. The measures adopted by the Government proved successful in upholding law and order.

&htab;But it is you, Colombians from all walks of life - workers, heads of enterprises, housewives and ordinary people - who, thanks to your steadfastness, have turned a threat into a plebiscite in favour of peace and democracy. I have always firmly believed that the agitators' major obstacle would be the allegiance of the majority to our institutions. Similarly, I was also sure that subversive action would never succeed because it would always come up against the feelings of the majority of Colombians.

&htab;488.&htab;In its communication of 14 December 1988, the Government, referring to the day of protest known as the general strike, called by the CUT and backed by the CGT and CTC, states that only trade unions or groups of workers directly or indirectly concerned have the right to strike. Under section 417 of the Labour Code, "all trade unions shall have the right, without any restrictions whatsoever, to establish and join local, regional, occupational or industrial federations and these shall also have the right to join together in confederations. Federations and confederations shall be entitled to recognition of their legal personality and the same functions as trade unions, with the exception of the right to declare a strike, which belongs exclusively, when authorised by the law, to the trade unions or groups of workers directly or indirecly concerned". The Government adds that, as regards the alleged arrests of trade union officials during the day of protest on 27 October 1988, the Ministry of Labour has started preliminary investigations to determine the accuracy of these allegations.

&htab;489.&htab;In a later communication dated 4 April 1989, the Government states that it appears from the allegations that the arrests were necessary to comply with the standards of public law and order. The Government was guided by the philosophy that public law and order should not be disrupted. The situation prevailing in Colombia is well known and it was important that it should not worsen. It is for this reason that the state of siege has been decreed on several occasions and this provides for restrictions on some rights. These disruptions of public law and order require high-level policy decisions. The Government stresses that not only trade unionists and workers are victims of the violence, but also heads of enterprises and civil servants. Furthermore, as regards the suspension of legal personality, the Government states that it is bound to abide by the rulings of the State Council, which is competent at the national level to define the situation. Finally, the Government requests the ILO to ask the trade union organisations for detailed information on the places where the alleged occurrences in the present case occurred. (The International Labour Office immediately sent the Government's request to the complainant organisations.)

&htab;490.&htab;Furthermore, the Government asks the ILO to request the complainant organisations to provide detailed information about the places where the alleged facts took place [the International Labour Office immediately transmitted the Government's request to the complainant organisation]. Finally, in its communication of 24 May 1989, the Government indicates that the union leaders detained because of the 27 October 1988 strike have been released the following days (Mrs. Ligia Cáceres was held in detention for 15 days). The Government then mentions a series of serious acts of terrorism and sabotage which were committed in the country on the day of that strike.

&htab;491.&htab;As regards the allegations concerning the murders and disappearances of trade union leaders and unionists, the Committee recalls that at its November 1988 meeting it pointed out that, without doubt, it found itself confronted with one of the most serious cases it had received concerning the respect for the right to life [see 259th Report, para. 650], and that the dramatic situation of violence facing Colombia impeded the full exercise of trade union activities [see 259th Report, para. 678(b)]. Consequently, the Committee, after stating how shocked it was by the very high number of murders and disappearances of trade union leaders and unionists (over 200 since 1986), requested the Government: (1) to adopt vigorous measures at the national level to dismantle the so-called paramilitary groups active throughout the country, and (2) to take the necessary measures to strengthen substantially the human and financial resources of the judiciary [see 259th Report, para. 678(d) and (f)]. The allegations examined by the Committee at its November meeting also included death threats to hundreds of trade unionists.

&htab;492.&htab;Six months after having examined these extremely serious allegations, the Committee notes the contents of Decrees Nos. 813, 814 and 815 of 19 April 1989 that establish a high-level commission mandated to evaluate and co-ordinate actions against the death squads and other groups of hired assassins and of "private justice", as well as a Special Armed Corps comprised of 1,000 members of the National Police, to fight these groups; furthermore, under these Decrees the population's collaboration with the armed forces is restricted to non-aggressive activities, and civilians are prohibited from giving, carrying and using firearms exclusively reserved for the armed forces. In spite of these developments, the Committee notes with deep concern that the complainants have alleged the murder of a further 46 trade unionists, another disappearance and many acts of violence, and that there are no indications in the Government's observations that it has adopted effective and definite measures to strengthen the human and financial resources of the judiciary. In addition, as regards the alleged murders and disappearances, the Government has merely referred to the stage reached in the inquiries undertaken concerning ten of the murders, pointing out that those responsible for these murders have not been identified.

&htab;493.&htab;In these circumstances, the Committee expresses its disappointment, reiterates the conclusions and recommendations it reached at its November 1988 meeting and is obliged to conclude at its present meeting that the Government has not yet adopted all the necessary and appropriate measures required from it to guarantee the right to life to trade union leaders and unionists, which is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87. Taking into account the absolute need to put an end to the violence confronting the country, which is seriously affecting trade union circles, the Committee urges the Government to adopt the measures it proposed to strengthen substantially the human and financial resources of the judiciary. The Committee requests the Government to send observations on the allegations concerning the numerous murders of trade unionists in respect of whom no information has been received (see Annex I), to keep it informed of developments in the judicial inquiries undertaken on the other cases (see Annex II), and on the results of the measures taken to fight and dismantle the death squads and the other groups of hired assassins or of "private justice".

&htab;494.&htab;As regards the banning of the general strike on 27 October 1988 and the measures adopted as a result of the strike (suspension of the legal personality of eight trade unions by the Ministry of Labour, arrests and dismissals of a large number of trade unionists) under Decrees Nos. 2201 and 2200 issued under the state of emergency, the Committee notes the Government's statements that federations and confederations do not enjoy the right to strike (section 417 of the Labour Code) and that during the above-mentioned general strike, the "National Guerillas Co-ordinating Committee" was preparing a day of terrorism which included calling upon workers to engage in street fights and clashes with the police, assaults and acts of sabotage against strategic points and attacks on military bases. The Committee notes that the decrees issued under the state of emergency on account of the general strike sought to avoid the disturbance of public law and order in view of the well-known situation prevailing in Colombia, resulting in arrests on this occasion; it also notes that as regards the suspensions of legal personality, the Council of State is the competent authority that has to define the situation.

&htab;495.&htab;The Committee considers that a general protest strike demanding that an end be put to the hundreds of murders of trade union leaders and unionists during the past few years is a lawful trade union activity. The Government raised two basic arguments for its banning: (1) labour legislation denies this right for federations and confederations; and (2) groups of guerillas were planning to carry out attacks and to sabotage installations during this strike. On the first point, the Committee has mentioned on many occasions that "the prohibition on calling of strikes by federations and confederations is not compatible with Article 6 of the Convention, which refers to Article 3 of the Convention with respect to the functioning of federations and confederations". [See Digest of Decisions and Principles of the Committee , 1985, para. 366.] Similarly, at its March 1989 meeting, the Committee of Experts on the Application of Conventions and Recommendations objected to section 417 of the Labour Code that bans federations and confederations from calling a strike and requested the Government to review the legislation on this matter. As regards the attacks and acts of sabotage which, according to the Government, guerilla groups were planning to carry out during the general strike and actually took place, the Committee recalls that from the standpoint of the principles of freedom of association, nothing would have prevented the banning of the strike in essential services (i.e. in those services whose interruption would endanger the life, personal safety or health of the whole or part of the population) or the setting up of minimum services. The Committee therefore concludes that the banning of the general strike on 27 October 1988, by virtue of the decrees issued under the state of emergency on 25 October, constitute a serious violation of freedom of association.

&htab;496.&htab;As regards the consequences of the above-mentioned general strike, the Committee shares the point of view expressed by the Committee of Experts in its March 1989 meeting, when it examined the question of the suspension of the legal personality by administrative authority under the above-mentioned decrees issued under the state of emergency. The Committee of Experts stated the following:

&htab;The Committee wishes to refer to the conclusions made by the Committee on Freedom of Association when examining Case No. 1343 concerning Colombia (see 244th Report, para. 376) in which it gave its opinion on the suspension of the legal personality of an organisation and pointed out that the dissolution or suspension by administrative authority of workers' and employers' organisations is contrary to the provisions of Article 4 of the Convention, particularly since the appeal to the Ministry of Labour (the result of which would be subject to judicial appeal) did not result in the suspension of the measure; consequently, the organisations in question could not legally operate while the measure was in force. The Committee also notes that in October 1988, subsequent to the above report of the Committee on Freedom of Association, decrees were again issued under the state of emergency penalising the organisations participating in the general strike planned for 20 October 1988 with the suspension of their legal personalities.

&htab;In these circumstances, the Committee regrets that the Government has not taken into account the comments by the supervisory bodies on this subject and requests the Government to take measures to eliminate from the legislation any possibility of suspension or dissolution by administrative authority, or at least to provide that the administrative decision does not take effect until the judicial authority has ruled on any appeal that may be made by the trade union organisations concerned. The Committee points out that trade union organisations must be able to call legitimate strikes in order to further the economic and social interests of their members without being liable to suspension or dissolution when their action has remained peaceful in nature.

&htab;497.&htab;In these circumstances, the Committee urges the Government to lift the suspension of the legal personality of all the trade union organisations concerned and to take measures to ensure that the legislation prohibits this type of suspension in all cases, including in a state of emergency.

&htab;498.&htab;As regards the arrests (204 according to the complainants) and dismissals (76 according to the complainants), the Committee regrets that the Government did not comment on the lists of trade unionists affected by these measures and merely stated, in a general way, that the arrests occurred because of a failure to comply with standards of public law and order, and that the detained union leaders were released on the following days. Furthermore, the Committee notes that the decrees issued under the state of emergency, to which the complainant organisations referred, provide that the administrative or military authorities and not the judicial authority may impose prison sentences of 30 to 180 days for having encouraged the strike; it also notes that, in principle, the above-mentioned sentences must already have come to an end. The Committee requests the Government to inform it whether this is the case; furthermore, it deplores all those cases in which prison sentences are handed down on account of activities to organise strike action because these constitute a violation of freedom of association and it requests the Government to take measures to ensure that the legislation prevents the administrative or military authorities from imposing penal sanctions. The Committee also stresses out that nobody should be dismissed or discriminated against in their work on account of their trade union activities and requests the Government to take measures towards the reinstatement of those workers dismissed for having taken part in the general strike.

&htab;499.&htab;Finally, the Committee regrets that the Government did not reply to the other allegations referring to arrests and acts of violence against trade unionists and trade union headquarters since October 1988, as well as to a report from the Administrative Department of Security (DAS) provided by the complainants, and which concern a paramilitary group from Puerto Boyacá in which several civilian and military authorities are allegedly involved. The Committee requests the Government to reply to these allegations.

&htab;500.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee is deeply concerned by the large number of trade union leaders and unionists who have been murdered or have disappeared since 1986 and observes that the situation is continuing to worsen because since its November 1988 meeting (at which it examined allegations concerning the murder or disappearance of more than 200 trade unionists), the complainant organisations have reported the murder of a further 46 trade union leaders and unionists as well as one new disappearance.

(b) While noting the important measures taken by the President of the Republic to fight the death squads and other groups of hired assassins and of "private justice", the Committee expresses its disappointment in noting that the Government only referred to 12 cases of murder and that there is no indication in its reply that it has adopted efficient and concrete measures to strengthen substantially the human and financial resources of the judiciary. The Committee firmly hopes that the recent Decrees adopted by the Government will intensify and make more effective the protection afforded to trade union leaders. (c) The Committee concludes that the Government has not yet adopted all the necessary and appropriate measures required from it to guarantee the right to life of trade union leaders and unionists, which is a prerequisite for the exercise of the rights contained in Convention No. 87. Consequently, whilst reiterating the conclusions and recommendations contained in its November 1988 report, the Committee urges the Government to send its observations on the allegations of murders and disappearances to which it has not replied (Annex I) and on the stage of the judicial inquiries undertaken in the other cases (Annex II), and especially to adopt the measures already advocated to strengthen substantially the human and financial resources of the judiciary. The Committee also requests the Government to keep it informed on the results of the measures taken to fight and dismantle the death squads and the other groups of hired assassins and of "private justice".

(d) The Committee considers that the banning of the general strike of 27 October 1988 and the numerous arrests which ensued for activities encouraging this strike, constitute violations of freedom of association. The Committee requests the Government to lift the suspension of the legal personality of all the trade union organisations concerned, to take steps to reinstate all those workers dismissed for having participated in the general strike and to keep it informed on the matter including indications as to whether any trade unionists are still detained (the Government has only mentioned that the leaders were released).

(e) The Committee requests the Government to take the necessary steps to amend the legislation so that:

&htab; - it will be impossible for the administrative or military authorities, even in a state of emergency, to suspend trade union organisations by administrative authority and to sentence trade unionists to imprisonment;

&htab; - federations and confederations may be authorised to call a strike.

(f) The Committee requests the Government to reply to the allegations concerning acts of violence against trade unionists and trade union headquarters and arrests that have occurred since October 1988, and to send its observations on the report from the Administrative Department of Security (provided by the complainants) concerning a paramilitary group from Puerto Boyacá in which several civilian and military authorities are allegedly involved.

&htab;501.&htab;In a communication dated 2 August 1988, the Centre of Indian Trade Unions (CITU) presented allegations of violations of trade union rights against the Government of India. The Government sent its observations on the case in communications dated 5 September 1988, 28 February 1989, 23 March 1989 and 28 March 1989.

&htab;502.&htab;India has not ratified the Freedom of Association and Protection of the Right to Organisation 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;503.&htab;The complainant has presented a series of allegations of violations of trade union rights in the State of Tripura. The alleged violations include assaults, murders, arson, rape, false arrests, attacks upon union premises, dismissals and threatened dismissals of union members and the deregistration of trade unions. All of these incidents occurred between February and June 1988, in the aftermath of a change of government in Tripura. According to the complainant, many of the assaults etc. were perpetrated by supporters of the new government - often with the support (active or passive) of the public authorities.

&htab;504.&htab;The complainant sets out its allegations under 22 headings. They may be summarised as follows:

&htab;(i) On 5 February 1988 the premises of the Motor Shramik Union (MSU) (an affiliate of the CITU) were attacked by "Congress (I) anti-socials". The incident was allegedly reported to the police, but no action was taken.

(ii) On 6 February 1988 two members of the MSU, Gopal Ghosh and Indrajit Das, were attacked. Gopal Ghosh was murdered and Indrajit Das was severely injured. "Astonishingly" Indrajit Das was arrested by the police.

(iii) Also on 6 February 1988 the houses of three trade unionists (Anil Das, Madhu Mian and Hiranmoni Bonaj) were set on fire. Mrs. Bonaj and her husband were also dismissed from their employment at the Laxmi Iunga Tea Estate. (iv) On 24 February 1988 Dharma Das, a member of the State Committee of the CITU, and his son, were arrested without a warrant. Dharma Das was allegedly kept naked in police custody and severely beaten up. His home was ransacked in the name of a search, but nothing was found. He was kept in police custody until 14 March 1988, when he was released on his own bond.

&htab;(v) On 25 February 1988 two leaders of the Kailashahar Tea Workers' Union (Bandan Gope and Laxmi Naryan Choun) were arrested on false charges and beaten up while in police custody.

(vi) On an unspecified date, the State Secretary of the CITU (Shakti Prasanna Bhattacharya) was attacked in his home by "Congress (I) anti-socials".

(vii) On unspecified dates in March 1988 the homes of Sridam Sutradhar and Sudarshan Das were set on fire, leaving them and their families homeless. Allegedly, they are also unable to enter their home areas due to a reign of terror created by the "Congress (I) anti-socials".

(viii) On 1 April 1988 276 members of a CITU affiliate were forcefully prevented from taking up their duties at the Kamalasagar Goatary Farm. Two days later a number of these workers were beaten up. Both of these incidents were reported to the police by a local member of parliament (Shree Motilal Sarkar), but no action was taken against the culprits.

(ix) On 6 April 1988 a leader (Abdul Samad) of the daily-rated contract workers at a thermal plant construction site was called to a meeting with the State Home Minister and warned against pressing ahead with a demand for higher wages. Later, Mr. Samad was arrested and severely beaten whilst in police custody.

&htab;(x) On 8 April 1988 the offices of the MSU were attacked and a number of individuals (including Sudhangshu Das) were beaten up. This attack was allegedly carried out by "Congress (I) anti-socials", assisted by members of the Central Reserve Police Force and the Police Force.

(xi) On 19 April 1988 the leader of the Congress (I) party in Tripura (Shree Dhirendra Debnath) visited the Mohanpur Food Godown, accompanied by a number of party workers and members of the police force. He asked a member of the management of the Godown to hire a number of individuals whose names appeared upon a written list. According to the complainant, 18 members of a union affiliated to the CITU were immediately dismissed. The complainant alleges that similar incidents occurred at two other establishments involving the dismissal of a total of 90 workers. (xii) On 6 May 1988 a group of "anti-social elements" entered the Kalshimuk Rubber Plantation Centre and beat up workers at random. A number of workers, including the secretary of the Rubber Shramik Union (RSU) (Rakhal Roy), were hospitalised. Subsequently 38 union members were dismissed and replaced by "Congress (I) anti-socials". Allegedly this took place on the instructions of a police officer. The complainant also alleges that the offices of the RSU were ransacked in the presence of the police. (xiii) On 9 May 1988 a number of "hoodlums" are said to have warned Mahendra Debnath to leave a union affiliated to the CITU or else he would be murdered. Some days later Mr. Debnath was murdered, allegedly with the complicity of the State Home Minister. The police registered the case as suicide.

(xiv) On 13 May 1988 Suken Tripura, a member of a CITU affiliate, was assaulted by a "Congress (I) hoodlum" (Dipak Malla) and was obstructed when he tried to report the matter to the police. Later, Suken Tripura, Suriya Tripura, Harimohan Tripura and Daitiya Mohan Tripura were arrested on informations laid by Dipak Malla. Whilst in police custody, Suriya Tripura was severely tortured. He was eventually brought before a court without having received any medical treatment and received a custodial sentence.

(xv) On an unspecified date two CITU leaders, Shyamal Paul and Manik Das, were physically assaulted for having mobilised the workers of the National Projects Construction Corporation to observe May Day. Both Mr. Paul and Mr. Das were hospitalised as a result of their injuries.

(xvi) On 20 May 1988 Bharatmani Nayatiya, a leader of the Jute Mills Workers' Union and a member of the State Committee of the CITU, was assaulted by Khokan Paul and a number of associates. He was arrested without charge and subsequently released. Later he was arrested again on a false charge laid by Khokan Paul, tortured by the police, and eventually sent to prison.

(xvii) On 26 May 1988 eight workers were allegedly prevented from commencing work at the Paikhlola Rubber Plantation Centre by "Congress (I) miscreants". On 31 May 17 workers were similarly obstructed at a different plantation. Around the same time two workers, Atul Debnath and Natu Urang, were physically assaulted by "miscreants". All of these incidents were reported to the police, but no action was taken. (xviii) On 5 June 1988 a police officer and "about 250 Congress (I) miscreants" allegedly assaulted two rubber workers' leaders (Dankumar Tripura and Satinanda Tripura).

(xix) On 6 June 1988 the same gang assaulted Chikan Tripura, a rubber worker, and then handed him over to the police. Whilst he was in custody he was again assaulted and was released on 7 June. During the time that Mr. Tripura was in custody, the local office of the RSU was captured by members of the gang. They also, with the help of the police, prevented about 185 workers from attending their place of work, with the result that they lost their jobs.

(xx) It is alleged that over an unspecified period in 1988 25 offices belonging to CITU affiliates were seized by "anti-socials" - these included 11 offices belonging to the MSU. All of these incidents were reported to the police, who had taken no action against those responsible.

(xxi) During this same period the registration of eight unions affiliated to the CITU was cancelled either for no valid reason, or for non-submission of Annual Returns (even though all such returns had been submitted and accepted by the Registrar of Trade Unions).

(xxii) Between 31 May 1988 and 2 June 1988 it is alleged that seven women workers were gang-raped by soldiers.

&htab;505.&htab;In its communications the Government states that in India freedom of association and trade union rights are secured under national laws - notably the Trade Unions Act 1926 and the Industrial Disputes Act 1947. The first of these measures deals with such issues as the registration and deregistration of trade unions. The second deals, inter alia, with unfair labour practices such as interfering with, restraining or coercing workers in the exercise of their right to organise, form, join or assist trade unions. It also makes it unlawful to "discharge or dismiss" a worker by way of victimisation. Murders, physical assaults, burning of homes, etc., are criminal acts and as such can be punished in accordance with the Penal Code and associated measures.

&htab;506.&htab;The Government also affirms that it will continue to ensure that no trade union or federation is harassed by any particular party and that all trade unions and workers' organisations are free to carry on their genuine activities and to enjoy their basic rights.

&htab;507.&htab;As to the 22 specific allegations made by the complainant, the Government makes the following responses, based upon information provided by the Government of Tripura:

&htab;(i) It is true that there was a demonstration in front of the offices of the MSU on 5 February 1988. This was to protest against the murder of one Bishu Saha by a number of alleged supporters of the Communist Party of India (Marxist). The mob was dispersed by the police and no report was made to the police of any damage to the offices of the MSU.

(ii) It is true that Gopal Ghosh and Indrajit Das (together with Dhirendra Deb Darma) were attacked by a mob on 2 February 1988 and that Mr. Ghosh died of his injuries. It is also true that Mr. Das was arrested after the attack. The Government states that the attack was executed by local people who considered that Messrs. Ghosh, Das and Darma had been implicated in the murder of one Nripendra Rudra Paul. The arrest of Mr. Das was in connection with this murder, which is still under investigation. The police are also investigating the death of Mr. Ghosh.

(iii) According to the Government it is "strongly suspected" that the fire at the home of Mrs. Bonaj was accidental. It also states that Mrs. Bonaj and her husband left their employment of their own free will. On inquiry, no one named Anil Das or Madhu Mian could be found in the locality.

(iv) Dharma Das and Diplak Das were arrested on suspicion of involvement in an offence under section 326/302 of the Penal Code [the nature of which is not stated]. They were subsequently discharged by a court of law for want of evidence. The Government denies that either man was kept naked or beaten whilst in police custody. They also deny that the house of Diplak Das was ransacked.

&htab;(v) The two leaders of the Kailashahar Tea Workers' Union were arrested because of their complicity in the murder of one Haripada Dey. They were not assaulted whilst in police custody.

(vi) No complaint of an alleged attack upon the Secretary of the State CITU was reported to the police.

(vii) It is true that the home of Sridam Sutradhar was gutted by fire on the night of 19 March 1988. Charges were subsequently made against Dipak Malla and others. No such person as Sudarshan Das could be identified upon inquiry. The allegation that there is a reign of terror in the area is "baseless and motivated". (viii) It has not been established on inquiry that 276 workers were prevented from taking up their duties on 1 April 1988, or that some workers were beaten up on 3 April 1988. Shree Motilal Sarkar did not report these incidents to the police.

(ix) Abdul Samad was not summoned to a meeting with the State Home Minister on 6 April 1988. He was, however, arrested on that day on a charge of disorderly behaviour in a public place under the influence of liquor. He was subsequently tried and convicted on this charge. He had previously been arrested on various (unspecified) charges under the Penal Code and the Arms Act.

&htab;(x) The assault on Sudhangshu Das was carried out by dissident elements in his own union. Mr. Das had registered a complaint with the police and the matter is under investigation.

(xi) The Government states that all three allegations relating to the dismissal of members of CITU affiliates are without foundation.

(xii) Rakhal Roy Burman sustained "simple injuries" in the course of a clash between supporters of two rival unions at the Kalshimukh Rubber Plantation Centre on the morning of 6 May 1988. A number of members of both unions were also injured. Police investigations relating to this incident are pending. The office of the Rubber Shramik Union was not ransacked in the presence of the police. It is also untrue that members of CITU affiliates were dismissed and replaced by Congress (I) workers.

(xiii) The Government categorically denies that Mahendra Debnath was threatened by supporters of Congress (I), or that the State Home Minister had been in any way involved in his death. Police inquiries and a post-mortem examination had established beyond any doubt that Mr. Debnath had committed suicide.

(xiv) It is true that Manimohan Tripura and Surjya Tripura were arrested on the complaint of Dipak Malla. Surjya Tripura resisted arrest and sustained a "simple injury", which was treated by a doctor. He was not beaten whilst in police custody. Daitya Tripura was brought to the police station for questioning in relation to the same matters as Manimohan Tripura and Surjya Tripura, but was subsequently released. No complaint was laid with the police in relation to the alleged assault of Sukhen Tripura by Dipak Malla.

(xv) Shyamal Paul did lay assault charges against a number of individuals. Following a police investigation, all of these individuals were arrested and charged. The incident occurred in February 1988 and had no connection with the observance of May Day. (xvi) Bharatmoni Notaia was detained by some local people at Melagarh Bazaar with an unlicensed revolver in his possession. He was subsequently handed over to the police and charged with an offence under the Arms Act. He was not assaulted by Khokan Paul and he was not tortured whilst in police custody. He did, however, sustain "some swelling injuries" during a scuffle with the local people who detained him. The allegation that the revolver was "planted" in his bag by Khokan Paul was not substantiated on inquiry. (xvii) Neither of the allegations of obstruction of rubber workers were substantiated on inquiry. Natu Urang was not assaulted by miscreants. Atul Debnath received a "slap" in the course of an altercation with some local people in a market. The offence was "non-cognizable" which meant that no police case could be registered. The police did, however, ensure that "no untoward incident occurred following this incident".

(xviii) The Government denies the allegation that a police officer accompanied by a mob of "miscreants" assaulted Dhankumar Tripura on 5 June 1988. However, on the complaint of Mr. Tripura charges were laid against Tapan Majumdar and five others. The matter is still under investigation.

(xix) Chikan Tripura was suspected of involvement in the abduction of Dipak Malla and two others. This led some local people to attack Mr. Tripura on 6 June 1988. Mr. Tripura laid charges against a number of individuals, but the police subsequently dropped the case for lack of evidence. Mr. Tripura was not assaulted whilst in police custody. The office of the RSU was not taken over by gangsters and there is no evidence that any workers were obstructed from going to work or made jobless.

(xx) The allegation that 25 CITU offices were captured by Congress (I) supporters proved baseless on inquiry. It is also untrue that the police had refused to take any action in relation to these incidents. The one case which was reported to the police was dealt with "as per the law".

(xxi) During the relevant period no unions were deregistered under the 1926 Act.

(xxii) The alleged gang rape of tribal women was investigated by a Fact-Finding Committee headed by a District Magistrate. The Committee found that the allegations were baseless.

&htab;508.&htab;The complainant has presented a series of 22 specific allegations of violations of trade union rights in the State of Tripura. Most of these allegations relate to assaults, murders, arson and false arrests of members and officials of trade unions affiliated to the CITU. Others relate to attacks upon union premises, dismissal and threatened dismissal of trade union members, intimidation of union officials and the deregistration of trade unions.

&htab;509.&htab;The Government rejects all of these allegations. It states that they either lack factual foundation, or present a distorted picture of what really occurred.

&htab;510.&htab;The Committee notes that the allegations presented by the complainant are quite specific in nature, in the sense that they concern named individuals, and generally specify the place and date of the violation. However, none of these allegations are supported by documentary evidence of any kind. Similarly, the Government repudiates each of the complainant's allegations seriatim, but does not provide any documentary evidence in support of its position.

&htab;511.&htab;The Committee has always taken the view that complaints must be as fully supported as possible by evidence of specific infringements of trade union rights [ Digest of Decisions and Principles of the Freedom of Association Committee , 1985, para. 43]. It has also emphasised that governments should recognise the importance for their own reputation of formulating, so as to allow objective examination, detailed replies to the allegations brought against them [ Digest , op. cit., para. 59].

&htab;512.&htab;Adherence to these precepts is especially important in a case such as the present, where the complainant and the Government are in fundamental disagreement as to the factual basis of the allegations, and as to the application of the principles of freedom of association to those facts.

&htab;513.&htab;Because of the lack of detailed evidence in support, or refutation, of the various allegations, the Committee finds itself unable to express any decided view on certain of the matters raised by the complainant. Accordingly, it directs the following requests to the Government:

- As regards allegation (ii), the Government is asked to provide information as to the outcome of the investigation into the murders of Gopal Ghosh and Nripendra Rudra Paul, including details as to the outcome of any relevant court proceedings.

- As regards allegation (v), the Government is asked to provide further particulars as to the alleged complicity of Badan Gope and Laxminarayan Chauhan in the murder of Haripada Dey. In particular, it is asked to indicate whether these individuals have been charged with any offences in relation to this matter, and if so, whether these charges have been brought to court. - As regards allegation (vii), the Government is asked to provide further particulars as to the charges which have been laid against Dipak Malla and others, including details as to the outcome of any relevant court proceedings.

- As regards allegation (ix), the Government is asked to provide further particulars as to the charges which have been laid against Abdul Samad in connection with Kamalchura Police Station Case No. 1(3)/88, including details as to the outcome of any relevant court proceedings.

- As regards allegation (x), the Government is asked to provide further information as to the outcome of the police investigation into the complaint lodged by Sudhangshu Das [Teliamura Police Station Case No. 5(4)/88], including details as to the outcome of any relevant court proceedings.

- As regards allegation (xii), the Government is asked to provide further information as to the outcome of the police investigations into the incident at the Kalshimukh Rubber Plantation Centre on 6 May 1988, including details as to the outcome of any relevant court proceedings.

- As regards allegation (xiv), the Government is asked to provide further information as to the charges which were laid against Manimohan Tripura and Surjya Tripura [Baikhora Police Station Case No. 5(5)/88], including details as to the outcome of any relevant court proceedings.

- As regards allegation (xv), the Government is asked to provide further information as to the outcome of the police investigation into the complaint laid by Shyamal Paul [Teliamura Police Station Case No. 5(2)/88], including details as to the outcome of any relevant court proceedings.

- As regards allegation (xvi), the Government is asked to provide further information as to the charges which were laid against Bharatmoni Notaia under section 251(A) of the Arms Act, including details as to the outcome of any relevant court proceedings.

- As regards allegation (xviii), the Government is asked to provide further information as to the outcome of the police investigation into the complaint laid by Dhankumar Tripura against Tapan Majumdar and others, including details as to the outcome of any relevant court proceedings.

- As regards allegation (xx), the Government is asked to provide further information as to the manner in which "the specific case" of capture of an office belonging to a CITU affiliate was "attended as per the law".

&htab;514.&htab;On the basis of the information supplied by the complainant, and the Government's observations thereon, the Committee considers that the matters raised in allegations (i), (iii), (iv), (vi), (viii), (xi), (xiii), (xvii), (xix), (xxi) and (xxii) do not call for further examination.

&htab;515.&htab;The Committee also considers that, apart from those matters in relation to which requests have been directed to the Government, allegations (v), (vii), (ix), (xii), (xiv), (xv), (xvi) and (xx) do not call for further examination.

&htab;516.&htab;The Committee has always taken the view 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, and that it is for governments to ensure that this principle is respected [ Digest , op. cit., para. 70]. On the basis of the evidence contained in the complainant's allegations and in the Government's observations, it regrets that such a climate does not presently exist in the State of Tripura. Accordingly, the Committee calls upon the Government actively to promote the creation and maintenance of a climate in that State which is conducive to the development and maintenance of a genuinely free and independent trade union movement, and to keep the Committee informed of developments in this regard. The Committee also invites the Government to endeavour to obtain the co-operation of the complainant in the creation of such a climate.

&htab;517.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee asks the Government to provide information as to the outcome of the investigation into the murders of Gopal Ghosh and Nripendra Rudra Paul, including details of the outcome of any relevant court proceedings which may have been instituted as a consequence of those investigations.

(b) The Committee asks the Government to provide further particulars as to the alleged complicity of Badan Gope and Laxminarayan Chauhan in the murder of Haripada Dey. In particular, it is asked to indicate whether these individuals have been charged with any offences in relation to this matter, and if so, whether these charges have been brought to court.

(c) The Committee asks the Government to provide further particulars as to the charges which have been laid against Dipak Malla and others, including details as to the outcome of any relevant court proceedings. (d) The Committee asks the Government to provide further particulars as to the charges which have been laid against Abdul Samad in connection with Kamalchura Police Station Case No. 1(3)/88, including details as to the outcome of any relevant court proceedings.

(e) The Committee asks the Government to provide further information as to the outcome of the police investigation into the complaint lodged by Sudhangshu Das [Teliamura Police Station Case No. 5(4)/88], including details as to the outcome of any relevant court proceedings.

(f) The Committee asks the Government to provide further information as to the outcome of police investigations into the incident at the Kalshimukh Rubber Plantation Centre on 6 May 1988, including details as to the outcome of any relevant court proceedings.

(g) The Committee asks the Government to provide further information as to the charges which were laid against Manimohan Tripura and Surjya Tripura [Baikhora Police Station Case No. 5(5)/88], including details as to the outcome of any relevant court proceedings.

(h) The Committee asks the Government to provide further information as to the outcome of the police investigation into the complaint laid by Shyamal Paul [Teliamura Police Station Case No. 5(2)/88], including details as to the outcome of any relevant court proceedings.

(i) The Committee asks the Government to provide further information as to the charges which were laid against Bharatmori Notaia under section 251(A) of the Arms Act, including details as to the outcome of any relevant court proceedings.

(j) The Committee asks the Government to provide further information as to the outcome of the police investigation into the complaint laid by Dhankumar Tripura against Tapan Majumdar and others, including details as to the outcome of any relevant court proceedings.

(k) The Committee asks the Government to provide further information as to the manner in which "the specific case" of capture of an office belonging to a CITU affiliate was "attended as per the law".

(l) The Committee regrets the absence of a climate in the State of Tripura which is conducive to the development and maintenance of a genuinely free and independent trade union movement, and asks the Government to take steps actively to promote the development of such a climate and to keep the Committee informed of developments in this regard. (m) The Committee invites the Government to endeavour to obtain the co-operation of the complainant in the creation of a climate in the State of Tripura which is conducive to the development and maintenance of a genuinely free and independent trade union movement.

&htab;518.&htab;The World Federation of Trade Unions (WFTU), the Miners' International Federation (MIF), the Peruvian General Confederation of Labour (CGTP) and the International Confederation of Free Trade Unions (ICFTU) presented complaints against the Government of Peru alleging violations of freedom of association. The WFTU sent two communications dated 9 November 1988 and 21 February 1989; the ICFTU sent a communication dated 13 January 1989; the MIF sent a communication dated 22 February 1989; and the CGTP sent a communication dated 14 December 1988. The Government sent its observations in communications dated 27 February and 13 March 1989, as regards Case No. 1478, and 12 April 1989, in connection with Case No. 1484.

&htab;519.&htab;Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;520.&htab;In its communication of 9 November 1988, the WFTU alleges that on 13 October 1988 the Peruvian General Confederation of Labour (CGTP) organised a demonstration in support of workers' demands for improvements in their economic and social situation, which was brutally repressed by the police; 50 workers were injured and over 900 detained, including Pablo Checa, Deputy General Secretary of the CGTP, Alberto Ramírez, Organising Secretary of the CGTP, Pedro Huilca, General Secretary of the Construction Workers' Trade Union Federation, and Alipio Centeno, General Secretary of the Light and Power Workers' Federation. In addition, many persons participating in the demonstration were beaten, including Senator Valentín Pacho, Vice-President of the WFTU and General Secretary of the CGTP, and Ricardo Letts, a trade union leader.

&htab;521.&htab;In another communication of 21 February 1989 the WFTU alleges that on 9 February a peaceful meeting of approximately 3,000 peasants was brutally repressed by the national police, and that 88 peasants were killed. Oscar Delgado, a leader of the customs workers, disappeared, and Saúl Cantoral, General Secretary of the National Federation of Mining, Iron and Steel Workers of Peru (FNTMMSP) was murdered.

&htab;522.&htab;In a communication of 22 February 1989 the Miners' International Federation (MIF) alleges that in Lima on 13 February 1989 paramilitary squads murdered Saúl Cantoral, General Secretary of the FNTMMSP, and Mrs. Consuelo García, an adviser to the committees of miners' wives. Likewise, the communication reports that Oscar Delgado, General Secretary of the Customs Workers' Trade Union, disappeared on 14 December 1988, confirming the allegations presented by the ICFTU in its communication of 13 February 1989. The ICFTU communication adds that on 3 January 1989 the police broke into the headquarters of its affiliate, the CTP, while the Executive Committee was meeting for the purpose of calling a special trade union congress, and detained Flavio Rojas, a trade unionist. The ICFTU adds that Mr. Rojas' whereabouts are unknown.

&htab;523.&htab;In its communication of 14 December 1988 the CGTP alleges the infringement of the right to unionise and the right to strike by the Government of Peru. The complainant alleges that the Government of Peru is openly violating the provisions of Articles 1 and 3 of Convention No. 87 by declaring illegal all strikes and work stoppages called by trade union organisations in accordance with Peruvian legislation and pursuant to the will of their members. The complainant also alleges that the Government has submitted a Bill on industrial relations which, on the subject of the exericse of the right to strike, expressly violates the principles and standards of freedom of association. The complainant alleges that, as part of its policy to intimidate and harass trade union organisations, the Government has formulated a series of administrative provisions which constitute anti-trade union discrimination, citing the following examples:

- Divisional Order No. 010-88-9DV-DEN in which the Ministry of Labour declared contrary to law the notice to strike submitted by the CGTP; once the notice to strike has been declared contrary to law, the strike, should it take place, is inevitably declared unlawful;

- Executive Award No. 015-88-1SD-NEC which upheld the 19 February 1988 decision to declare unlawful the strike of workers belonging to the staff union of the "El Nacional" daily; - Municipal Resolution No. 497 which declared illegal the 48-hour strike called by representatives of the municipal workers of Lima, dated 28 March 1988;

- Divisional Order No. 022-88-DV-NEC of 28 June 1988, issued by the Ministry of Labour, which declared illegal the strike voted by members of the Construction Workers' Federation, a CGTP affiliate;

- Divisional Order No. 0107-88-7DV-DEN of 14 July 1988, issued by the Ministry of Labour, which declared contrary to law the notice given by the CGTP for a national 48-hour work stoppage;

- Executive Order No. 095-88-1SD-NEC of 19 July 1988, issued by the Ministry of Labour, which upheld Divisional Order No. 048-88-1SD-NEC, which in turn declared contrary to law the notice of a strike called by the FNTMMSP;

- Departmental Resolution No. 221-88-INAP/J of 18 July 1988 in which the National Insitute for Public Administration (INAP) declared illegal the strike called by the INAP Workers' Trade Union;

- Divisional Order No. 219-88-2DV-DEN of 11 October 1988 by which the Ministry of Labour declared contrary to law the notice to strike presented by the CGTP.

&htab;524.&htab;The CGTP states that the Government invokes three kinds of arguments in support of its bans: (1) That the workers' decision to strike "is unlawful because it is not based on legitimate labour interests, but on other motives". The determination of such "motives" is a prerogative which the authorities have illegally assumed. Provisions in force concerning the exercise of the right to strike (Presidential Decree No. 017 of 2 November 1962) only require workers and their organisations to notify the labour authorities of their intention to strike at least 72 hours in advance, indicating the date and time of the strike vote, the number of workers voting and the number of workers in the trade union or enterprise concerned (section 3 of Presidential Decree No. 017). (2) That a strike cannot be used as "a means of pressure with respect to demands for which legal regulations in force prescribe compulsory recourse to specific procedures". (3) That if the striking workers "consider that there has been failure to comply with, or an infraction of, legal provisions or labour agreements, they have ready access to courts of law for redress". In these circumstances it is virtually impossible to call a lawful strike in Peru. Moreover, the complainant states that by issuing orders and decrees which declare strikes unlawful, the Ministry of Labour and the National Institute for Public Administration explicitly threaten to charge workers who participate in such strikes with offences that are punishable by dismissal. Likewise, the CGTP alleges that Presidential Decree No. 002-88-TR was one of a number of measures taken by the Government to render illegal the CGTP's call for a general strike on 28 January 1988; this Presidential Decree provided that deductions would not be made from the wages of workers who chose not to strike, but who arrived at work late owing to the strike. By means of other provisions the Government has "rewarded" workers who ignored the call to strike with special payments. As an example, the complainant encloses a copy of Presidential Decree No. 127-88-PCM of 13 October 1988.

Trade union autonomy and privilege

&htab;525.&htab;The CGTP alleges that the Government is guilty of serious offences against trade union autonomy and privilege, pointing in particular to the following facts:

(a) the violent disruption of trade union meetings. In September 1988 the authorities detained trade union leaders and workers of Servicio Industrial de la Marina (SIMA), a state enterprise, while they were mobilising to demand the full respect of their rights to collective bargaining and job security;

(b) the search of trade union offices, the ensuing damage to the premises and furnishings, and the confiscation of trade union property. Following the general strike of 13 October 1988 called by the CGTP in support of demands for higher wages to compensate for the rising cost of living, unqualified guarantees of job security and the respect of trade union and labour rights, the police sought to conduct a search of the CGTP office (located at Plaza 2 de Mayo, No. 48, Suite No. 204, in Lima), and dowsed it with a dye, teargas and opened fire, causing physical damage and injuring persons inside the building;

(c) the detention of trade union leaders and workers owing to their trade union activities. On 13 October 1988 police forces conducted a violent search of the offices of the Light and Power Workers' Federation, a CGTP affiliate. This Federation had been conducting a general, open-ended strike in support of the demands which it had presented to ELECTROPERU, a state enterprise, during the course of collective bargaining. On this occasion the police mistreated and detained several national leaders of the CGTP and other federations, including Pablo Checa Ledesma, Deputy General Secretary of the CGTP, Alberto Ramírez Hernández, Organising Secretary of the CGTP, Alipio Centeno Romani, Vice-President of the CGTP and General Secretary of the Construction Workers' Federation, Jaime Villaseca Zeballos, Secretary for the northern region of the Light and Power Workers' Federation, Grover Angues Peña, Secretary for External Affairs of the Integrated Electrical System Trade Union, as well as other trade union leaders and trade unionists, falsely accusing them of disturbing the peace and posing a threat to public safety, in an effort to link them with terrorists and subversive elements. They were subsequently released when the charges were proved groundless and the detentions arbitrary;

&htab;526.&htab;The detention of trade union leaders and workers in the mining, banking, textile and other sectors has continued, in response to their promotion of and participation in meetings and demonstrations held to demand the full respect of their individual and collective rights. In all these cases, the police has invoked the state of emergency declared in various parts of the country by Presidential Decree No. 032-88-IN. This Decree, declared in accordance with article 231, paragraph (a) of the Constitution, suspends the civil liberties set out in article 2, paragraphs 7, 9, 10 and 20, clause (g) of the Constitution, namely, protection against illegal searches, free choice of place of residence, freedom of movement within the national territory, freedom to hold peaceful meetings without prior authorisation, and prohibition of detention without a court order, except in cases of apprehension in flagrante delito , on the assumption that meetings held on trade union premises have as their object the planning of criminal activities linked to subversive acts, and on the assumption that the trade union organisations concerned had decided to disrupt the peace and threaten public safety. However, in all cases it was fully shown that the searches, detentions, seizures and physical attacks on trade union leaders and members were completely unrelated to the reasons which led the State to declare the state of emergency. It was also clearly shown that there was no evidence of criminal activity as defined in the Penal Code, and that on the contrary, the authorities had violated fundamental individual and collective rights and freedoms.

&htab;527.&htab;The complainant alleges that none of the above-mentioned searches or detentions were preceded by requisitions or denunciations alleging the commission of criminal acts. Moreover, the subsequent investigations showed clearly that the persons who had been detained had not engaged in any criminal activity; indeed, they were released even before the judicial authorities were able to consider the writs of habeas corpus presented by leaders of the trade union organisations concerned. Furthermore, the measures adopted by the Government in the above-mentioned cases are unrelated to the reasons which led it to declare the state of emergency by means of Presidential Decree No. 032-88-IN, in accordance with Presidential Decree No. 002-86-IN, both of which based the state of emergency on the increase of violent crimes in Lima and Callao and the need for exceptional measures to restore law and order. It was abundantly clear that these legal provisions refer to the activities of armed subversive groups, and in no way to the trade union activities of workers.

&htab;528.&htab;The complainant also states that it was fully shown that there were no valid grounds for the arguments presented by police authorities in support of their searches of and attacks on trade union offices, the detention of trade union leaders and workers, and the seizure of property and materials; on the other hand, there is considerable evidence to show that these actions were consciously designed to interfere with, limit and obstruct the exercise of trade union rights and freedoms. For example, all police interventions mentioned above took place while workers were exercising their trade union rights: attending meetings at their respective trade union offices, exercising the right to strike, or demonstrating publicly in defence of their rights and interests, without any evidence, much less proof, that any of these trade unionists intended to commit or had actually committed a crime. The political will to curtail trade union activity is also evidenced in the statements of police authorities and political figures who stated that "they had orders to detain all persons belonging to the Federation, since these trade union activities were causing chaos in the country ...".

&htab;529.&htab;The CGTP makes reference to the Industrial Relations Bill, alleging that it expressly violates the principles of free negotiation and contractual autonomy by providing for a first stage of direct negotiations in which workers and employers have a period of 30 days in which to reach agreement on the terms of a collective agreement. Where they fail to reach an agreement, contested issues are to be resolved by the labour authorities, whose decision is unappealable and binding. Moreover, the complainant states that this Bill is incompatible with Conventions Nos. 87 and 98 in that it defines compulsory modalities for collective bargaining, such as laying down the levels of negotiation, the duration of agreements, etc.

&htab;530.&htab;The CGTP also refers to Presidential Decree No. 041-88-TR which established ceilings on wage increases agreed to in collective agreements, as well as those set by administrative decision or arbitration awards. In this connection the complainant alleges that this measure limited the collective autonomy of the negotiating parties; moreover, in accordance with national legislation, the State's role should be confined to guaranteeing the right to collective bargaining and ensuring that procedures exist for the peaceful settlement of labour disputes, intervening only when the parties fail to reach an agreement within the context of specific instances of collective bargaining. The complainant alleges that Presidential Decree No.041-88-TR was promulgated at a time when the Government was implementing a number of economic measures which pushed inflation up to 114.5 per cent in September 1988. According to the CGTP, this makes it clear that the Government's actions were not based on criteria of social justice and the general interest, because these measures have had negative repercussions for most of the population and inflation was expected to reach 2,000 per cent by the end of 1988, and 39,000 per cent in 1989. The above-mentioned Presidential Decree has been repealed, but the complainant none the less requests that the Committee on Freedom of Association give its opinion on it since the Decree was a reflection of the Government's labour policy.

&htab;531.&htab;Lastly, in view of the serious and systematic violations of the principles of freedom of association and in view of the gravity of the current situation, the CGTP requests the Committee to send a special commission to Peru to investigate immediately the most critical aspects of the situation of Peruvian workers.

&htab;532.&htab;In a communication of 9 February 1989 the Government sent its observations on the allegations presented by the WFTU concerning the National Day of Protest organised by the CGTP on 13 October 1988. In this connection, the Government states that the demonstration was peaceful, but that there were isolated instances of confrontations between workers and the police and that a number of persons were detained for disturbing the peace and for resisting the national police. In any case, after the persons concerned were identified and questioned, they were immediately released. The Government adds that the Ministry of the Interior has been requested to furnish additional information, as this matter lies within its competence. Moreover, the Government states that it respects the normal and peaceful operations of trade union organisations and their leaders, in accordance with current labour legislation and international Conventions. It points out that the police intervene only when it is necessary to control excesses which threaten law and order and are unrelated to legitimate trade union activities.

&htab;533.&htab;In its communication of 13 March 1989 the Government sends detailed information concerning the allegations presented by the CGTP. In the light of the additional information obtained from the General Labour Relations Office, it concludes that the CGTP's allegations concern three major issues:

(a) the violation of the right to strike in Peru;

(b) a challenge to the Industrial Relations Bill, with specific reference to the right to collective bargaining and the right to strike;

(c) the arbitrary detention of trade union leaders and the violation of their civil liberties.

&htab;534.&htab;In this connection the Government states that, as acknowledged by the complainants themselves, the Peruvian Government recognises and respects the various international instruments on discrimination, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, as well as Conventions Nos. 87 and 98.

&htab;535.&htab;The Government states, that in view of these undertakings, article 54 of Peru's Constitution expressly provides for the right to collective bargaining as follows: "collective labour agreements between workers and employers have the force of law for the parties. The State guarantees the right to collective bargaining. The law stipulates the procedures for the peaceful settlement of labour disputes. State intervention shall only be resorted to and shall be final where the parties fail to reach an agreement." Article 55 guarantees workers the right to strike to be exercised in accordance with the law. Therefore, and in conformity with the provisions of article 55, the Government categorically states that it is not true that all strikes in Peru are declared illegal, as alleged by the complainants. It should be added that the exercise of the right to strike, by its very nature, is a legitimate means for applying pressure on the employer, provided the strike meets the requirements established by law. There are many strikes which are not declared illegal; on the contrary, provided they comply with the requirements set forth in Presidential Decree No. 017 of 2 November 1962, strikes are recognised as valid by the labour authorities in the following cases:

(1) When the strike is a response to the employer's manifest failure to abide by legal provisions or collective agreements (failure to pay wages, bonuses and other clearly established benefits).

(2) When the strike takes place during collective bargaining, in either the direct negotiation or conciliation stage, and is used as a legitimate means of applying pressure on the employer.

(3) In general, when there are sufficient grounds for calling a strike against a given employer. &htab;On the other hand, strikes are declared illegal in the following cases:

(1) When there is failure to comply with the requirements set forth in section 3 of Presidential Decree No. 017, such as the requirement to notify the authorities of the strike at least 72 hours in advance, stating the hour when the strike was voted and the number of workers belonging to the trade union.

(2) When the strike is declared after the direct negotiation or conciliation stage, and therefore when the settlement of the demands rests with the labour authorities, on the grounds that the strike cannot be used against the State, but only as a means of bringing pressure to bear against the employer.

(3) When the strike takes place suddenly, in other words, without meeting the minimum requirements established by law.

(4) When the strike concerns demands that should be handled through other established procedures. In other words, strikes are not justified where there are procedures to guarantee the resolution of individual or collective demands.

(5) When the strike is directed against the Government, and is therefore political in nature. As noted above, the right to strike is universally recognised as a means by which the worker may defend his legitimate interests vis-à-vis his employer, but not as a means of applying pressure against the State; the suggestions, concerns and requirements of institutions and organisations must be channelled through democratic machinery established by the Constitution and legislation. This applies specifically to the general strikes called by the CGTP in support of demands which should rather be raised and debated within the Parliament or brought to the attention of the executive branch through appropriate channels.

&htab;536.&htab;As regards the public administration, strikes are isolated occurrences to which recourse is had only after all other alternatives for settling a dispute have been exhausted. Independently of the foregoing, however, it must be recognised that Peru does not have fully adequate legislation concerning the exercise of the right to strike, and that it falls to the legislative branch to promulgate such legislation. It is precisely for this reason and in accordance with constitutional requirements that a Bill on industrial relations was formulated by a special committee which invited the participation of workers, employers and others concerned. This committee held meetings with the representatives of national employers' and workers' organisations to hear their suggestions and comments, which are reflected in the Bill. This Bill, which was drafted by the executive branch, is realistic in its approach to collective bargaining and is based on Peru's national experience of over 70 years of collective bargaining; it does not pretend to introduce innovations which are alien to Peu's experience and which, in the current difficult circumstances, could lead to greater disputes. Consideration has also been given to statistical data, and every effort has been made to ensure that the Bill's provisions are designed to promote direct agreement between the parties. In fact, according to statistical information, it is during the first stage of collective bargaining procedures (namely, direct negotiations) that most demands are resolved. The labour authorities intervene only after the breakdown of direct talks and at the request of the parties, for they may submit the dispute either to voluntary arbitration or to the labour authorities (section 22 of the Bill). Should the parties fail to reach an agreement concerning this choice, either of them may within 48 hours request the labour authorities to assume responsibility for the settlement of the dispute. In other words, the labour authorities intervene only at the request of the parties concerned, and with a view to facilitating the settlement of labour disputes and responding to the demands of workers. In both cases, whether the parties opt for voluntary arbitration or submit the dispute to the labour authorities, an economic and labour study which will guide the arbitration proceedings or the labour authority's examination of the matter, is carried out by the Economy, Labour and Productivity Office, and communicated to the parties. The Bill provides sufficient guarantees in the form of machinery to appeal the arbitration award or the decision of the labour authorities.

&htab;537.&htab;The Bill defines a strike as a right of workers consisting in the voluntary, collective and peaceful suspension of work; it states that strikes may be called as from the direct negotiations stage of collective bargaining, until such time as the dispute has been submitted for arbitration, and in certain other circumstances when the employer refuses to comply with decisions rendered or approved by the labour authorities. Moreover, the Bill provides that the strike must have as its object the defence and promotion of the interests and rights of workers, and the support of the just claims of other workers, provided that these are in the same branch of economic activity. The Bill defines the requirements for calling a strike: the strike must be approved in a general assembly by a majority of the workers and the labour authorities must be notified of the strike at least 72 hours in advance. The Bill identifies cases in which strikes are to be declared illegal; for instance, when they are carried out without complying with requirements established by law, when they are called for purposes other than those authorised by the law, and when striking workers engage in acts of violence against the employer or property at their workplace. The Bill also regulates the right to strike in essential services and provides that workers in such services may exercise the right to strike provided they do not interrupt the continuity of such services. Without prejudice to the foregoing general description of the Bill, the Government states that the Bill is to be debated in Parliament and may be further amended; the Bill does not seek to limit in any way the right to strike. Lastly, it points out that the Bill is not on the agenda of the special session of Congress, and the Government therefore considers this challenge premature.

&htab;538.&htab;As regards the detention of trade union leaders, the Government repeats that it is necessary to protect the public order from violence which sometimes hides behind claims of trade union rights. Without prejudice to the foregoing, the Government adds that it has requested the Ministry of the Interior to investigate the allegations that the national police has acted arbitrarily and violently on a number of occasions in connection with trade union action and strikes, and will send further information to the ILO. Lastly, the Government considers that the CGTP allegations that Peru does not respect trade union rights, are inaccurate and premature, and distort the true picture.

&htab;539.&htab;In its communication of 12 April 1989 the Government confirms reports which have appeared in a number of newspapers to the effect that the national police has undertaken an investigation into the whereabouts of Oscar Delgado, a leader of the Customs Workers' Trade Union. The Ministry of the Interior has set up a special team to inquire as to the whereabouts of this missing trade union leader, whose disappearance has provoked strikes by a number of trade union organisations and the Intersectoral Confederation of State Employees (CITE), and is a source of concern for the Government. It should be noted that the Ministry of the Interior - which has competence in this area - has stated that Mr. Delgado is not being detained in any state institution, and that his case is being handled as that of a missing person. The Ministry of the Interior has been requested to furnish additional information. As regards Flavio Rojas, the Government confirms media reports that there was a dispute regarding the leadership of the CTP between Flavio Rojas and Bernardino Céspedes, both of whom claimed to hold the office of general secretary; Mr. Rojas filed an action for relief which is now before the courts where the matter will be settled since the Ministry of Labour, in accordance with international Conventions, is not interfering in this case. The claim that Mr. Rojas' whereabouts are unknown is inaccurate, inasmuch as he enjoys the full exercise of his civil and trade union rights.

&htab;540.&htab;The Committee notes that the allegations in these cases refer to the violent repression by the police of a protest demonstration held in support of workers' demands for better economic and social conditions, which was organised by the CGTP on 13 October 1988, to the injury of 50 workers and the detention of over 900 (including Pablo Checa, Deputy General Secretary of the CGTP, Alberto Ramírez, Organising Secretary of the CGTP, Pablo Huilca, General Secretary of the Construction Workers' Trade Union Federation, and Alipio Centeno, General Secretary of the Light and Power Workers' Federation; injured trade unionists included Senator Valentín Pacho, Vice-President of the WFTU and General Secretary of the CGTP, and trade union leader Ricardo Letts); to the violent repression by police forces on 9 February 1989 of the peaceful meeting of peasants, which led to the death of 88 peasants and the disappearance of Oscar Delgado, a leader of the Customs Workers' Trade Union, and to the murder of Saúl Cantoral, General Secretary of the National Mining, Iron and Steel Workers' Federation, and Consuelo García, an adviser to the committees of miners' wives on 13 February 1989 in Lima. Other allegations refer to the infringement by the Government of trade union rights and the right to strike; the violation of Convention No. 87 when the Government declared illegal all strikes and work stoppages called by trade union organisations in accordance with current legislation; certain provisions of a Bill on industrial relations, whose section on the right to strike is contrary to the principles and standards of freedom of association and free collective bargaining; violations of trade union autonomy and immunity; the violent interruption of trade union meetings, the search of trade union premises and damage to trade union property; the arbitrary detention of trade union leaders owing to their trade union activities; interference in the organisation and realisation of trade union demonstrations, the refusal to grant the corresponding authorisations, and the violent assault upon demonstrating trade unionists. The pretext for all of these actions has been a state of emergency. Lastly, the allegations refer to the detention of trade union leader Flavio Rojas on 3 January 1989, after the police broke into the CTP trade union offices during a meeting of its executive committee.

&htab;541.&htab;As regards the allegation of the repression of a national day of protest organised by the CGTP on 13 October 1988 in support of workers' social and economic demands, the Committee takes note of the Government's statements to the effect that this demonstration developed peacefully, and that there were only isolated confrontations between workers and police forces which led to a few detentions of those disturbing the peace and abusing the police. It notes that those detained were released immediately after they had been identified and questioned. In this connection, the Committee wishes to recall that the detention of trade union leaders or members for legitimate trade union activities, even for a short period of time, constitutes a violation of the principles of freedom of association [see 236th Report, Case No. 1258 (El Salvador), para. 521]; likewise, it wishes to point out in general that the use of the police forces of order during public demonstrations should be limited to cases of genuine necessity [see 233rd Report, Case No. 1199 (Peru), para. 576]. The Committee requests the Government to forward to it information requested from the Ministry of the Interior.

&htab;542.&htab;As regards the allegation of police repression of a peaceful meeting of peasants which led to the murders of 88 peasants and of Saúl Cantoral, General Secretary of the National Mining, Iron and Steel Workers' Federation, and Consuelo García, an adviser to the committees of miners' wives, the Committee notes that the Government has not supplied information concerning these allegations; it strongly deplores these acts of violence and recalls that a climate of violence which leads to the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and requires that the authorities take severe measures. Likewise, the Committee recalls that it is particularly appropriate for the Government concerned to set up an independent judicial inquiry to ascertain the facts, determine responsibilities, punish those responsible and prevent the repetition of such actions [see paras. 77 and 78 of the Digest of decisions and principles of the Freedom of Association Committee , third edition]. The Committee requests the Government to indicate whether judicial investigations have been opened and, if so, to keep it informed on the progress and outcome of said inquiries.

&htab;543.&htab;As regards the disappearance of customs workers' leader Mr. Oscar Delgado, and the detention of CTP leader Flavio Rojas, the Committee notes the information furnished by the Government to the effect that the Ministry of the Interior has appointed a special team to determine the whereabouts of Mr. Delgado, that this trade union leader is not being held in any state institution, and that the allegations concerning Mr. Rojas' detention are inaccurate inasmuch as he enjoys full exercise of his civil and trade union rights. The Committee emphatically reiterates the principles set out in the previous paragraph.

&htab;544.&htab;As regards the allegations presented by the CGTP concerning practical obstructions to the exercise of the right to strike, in the form of administrative orders which in several cases have disallowed strikes owing to inadequate notice or the sector of activity concerned, or to the Government's claims that the strikes in question did not concern legitimate trade union interests, or that strikes could not be used as a means of pressure with respect to demands for which current legislation provides specific machinery, or that trade unionists have other means of obtaining compliance with legal provisions, the Committee notes the detailed information supplied by the Government on the grounds for declaring strikes illegal, namely: when notice of the strike is not given to the authorities at least 72 hours in advance, stating the hour of the vote on the issue of the strike and the number of workers in the union concerned; or when the strike takes place after the period set aside for direct negotiations and conciliation, and the settlement of the demands rests with the labour authorities, inasmuch as the strike may not target the State but may only be used as a means of pressure against the employer; or when it is a wildcat strike, in other words, where workers fail to comply with minimum requirements for strikes; or when the strike concerns demands which should properly be handled through other established procedures; or when the strike targets the Government and is obviously politically motivated. Likewise, the Committee notes that the Government recognises that Peru does not have adequate legislation concerning the exercise of the right to strike, and that a Bill on industrial relations is designed to remedy this shortcoming by establishing that strikes must have as their object the defence and promotion of the rights and interests of workers, or be in support of demands of other workers, provided they are in the same branch of economic activity; identifying the requirements for calling a strike; and regulating strikes in the essential services. In this connection, the Committee wishes to point out that it has always recognised the right to strike as a legitimate means of action available to workers and their organisations to promote and defend their economic and social interests. The Committee recalls that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement: workers and their organisations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests, and conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organisations [see paras. 362, 377 and 388, Digest , op. cit.].

&htab;545.&htab;As regards the allegations that trade union rights and principles of freedom of association have been violated (detentions, searches, the interruption of meetings), the Committee notes the Government's statements to the effect that trade union leaders have been detained owing to the need to maintain public order. However, the Committee wishes to recall that searches of trade union premises should be made only following the issue of a warrant by the courts where there are reasonable grounds for supposing that evidence exists on such premises material to prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued [see 236th Report, Case No. 129 (El Salvador), para. 536]. Moreover, the Committee reiterates the principle that the detention, even for a short period of time, of trade union leaders against whom no charges have been brought inhibits the exercise of trade union rights. The non-interference of governments in trade union meetings is an essential aspect of trade union rights, and the authorities should abstain from any form of intervention which may limit this right or obstruct its legal exercise, unless the exercise of this right is liable to disrupt or threaten the peace. The Committee notes that the Ministry of the Interior has been requested to undertake an investigation in this connection, and that its report will be forwarded to the ILO.

&htab;546.&htab;As regards the Bill on industrial relations, which according to the CGTP's allegations violates the principles of free negotiation, in the sense that it provides that the administrative authority shall issue binding and unappealable decisions concerning the demands in question where the parties fail to reach an agreement on the same within a period of 30 days, the Committee notes that section 23 of this Bill permits the labour authorities to intervene at the request of one of the parties ; likewise, the Committee notes that sections 31, 32, 33 and 34 read as follows:

&htab;Section 31: In the event that both parties agree to submit the dispute to the decision of the labour authority, or in the event of the contingency referred to in section 23, the labour authority shall, after having examined the dispute, request the specialised services of the Ministry of Labour and Social Welfare to initiate conciliation proceedings between the parties, the duration of which shall not exceed eight days. &htab;During such conciliation proceedings, if so requested by both parties, the competent official may propose solutions which the parties are free to accept, modify or reject.

&htab;Section 32: Should the parties fail to reach agreement in the conciliation proceedings, the labour authority shall request the competent department of the Ministry of Labour and Social Welfare to undertake the economic study.

&htab;This study shall be communicated to the parties, who shall be requested to comment on the same.

&htab;Section 33: Once the report and study referred to in the preceding section have been received, the labour authority shall rule on the demands within a period of eight days.

&htab;The labour authority's decision shall be binding and not subject to appeal.

&htab;Section 34: At all times throughout these proceedings, the parties shall have the right to meet on their own initiative, and to resort to any appropriate means to ensure the peaceful settlement of the dispute.

&htab;547.&htab;The Committee notes that the Government states that the administrative authority intervenes only after direct negotiations have broken down and at the request of the parties , since the parties have the option of submitting the dispute to voluntary arbitration or to the decision of the labour authority (section 22 of the Bill); in other words, the labour authority intervenes only at the request of the parties and for the purpose of facilitating a settlement of the dispute. In both cases, whether the parties opt for voluntary arbitration or submit the dispute to a decision of the labour authority, an economic and labour study is carried out to serve as a basis for the arbitration award or the settlement of the dispute by the labour authority; this study is entrusted to the Labour and Productivity Office, and copies of the same are furnished to the parties. The Bill provides sufficient guarantees for this procedure in the form of appeals for obtaining clarifications or the reversal of the arbitration award or the labour authority's resolution. Moreover, the Government states that the Bill has not yet been adopted and is scheduled to be debated in Parliament, but that this discussion of the Bill is premature inasmuch as it does not figure on the agenda of the special session of Congress. In view of the allegations presented by the CGTP concerning the Industrial Relations Bill, the Government's observations and the provisions of sections 22, 23, 31, 32, 33 and 34, the Committee is of the opinion that the provisions of section 23, which permit either party unilaterally to request the intervention of the labour authority, may effectively undermine the right of workers to call a strike, since section 40(a) states that "the strike may not be called after the dispute has been submitted to the labour authority". This provision does not promote voluntary collective bargaining, since one of the parties may undermine collective bargaining by unilaterally entrusting the settlement of the dispute to the labour authority, thereby suspending the right to strike.

&htab;548.&htab;As regards Presidential Decree No. 041.88.TR of 26 October 1988, which established ceilings for additional wage increases, the Committee notes that according to the complainants and the Government, this Decree has been repealed, and thus considers that this matter does not call for further examination.

&htab;549.&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 detailed information on the outcome of requests for information submitted to the Ministry of the Interior concerning the events which took place on 13 October 1988 during a national day of protest organised by the CGTP.

(b) The Committee deeply deplores the current violent situation and requests the Government to send its observations and information obtained from the Ministry of the Interior concerning the murders of Saúl Cantoral, the leader of the National Mining, Iron and Steel Workers' Federation, and Consuelo García, an adviser to the committees of miners' wives, the disappearance since 14 December 1988 of Oscar Delgado, a leader of the Customs Workers' Trade Union. The Committee further requests the Government to indicate whether inquiries have been opened on the death of 88 peasants during a meeting and, if so, to keep it informed of the progress and outcome of said enquiries.

(c) The Committee requests the Government to send its observations on the search of the CGTP offices, which resulted in damage to the premises and to trade union property, on 13 October 1988, on the search of the trade union offices of the National Mining, Iron and Steel Workers' Federation on 24 October 1988, on the confiscation of documentation and the mimeograph of this Federation, and on the police break-in of CTP premises during a meeting of its executive committee on 3 January 1989, when the trade union leader Flavio Rojas was allegedly detained.

(d) As regards the allegations concerning administrative provisions which, according to the CGTP, make it difficult in practice to call a legal strike, the Committee, while noting Peru's difficult economic and financial situation, wishes to recall that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organisations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests, and the conditions that have to be fulfilled under the law for a strike to be lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organisations. (e) As regards the Industrial Relations Bill, the Committee is of the opinion that the provisions of section 23 undermine the right of workers to strike and fail to promote voluntary collective bargaining.

(f) The Committee refers the legislative aspects of the cases to the Committee of Experts on the Application of Conventions and Recommendations.

&htab;550.&htab;In a communication dated 1 December 1988 the International Metalworkers' Federation (IMF) presented allegations of violations of trade union rights against the Government of Malaysia. The International Confederation of Free Trade Unions (ICFTU) joined in this complaint in a communication dated 22 December 1988. In a communication dated 19 January 1989, the Malaysian Trades Union Congress (MTUC) also joined in the complaint, and provided further information relating to the matters raised by the IMF in its letter of 1 December 1988.

&htab;551.&htab;The Government sent its observations on the case in a communication dated 5 April 1989.

&htab;552.&htab;Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;553.&htab;The IMF points out that since 1977 it has presented no less than four complaints of violations of trade union rights in Malaysia [see Case No. 879 (177th Report of the Committee, paras. 88-113, approved by the Governing Body at its 205th Session February-March 1978); Case No. 911 (190th Report of the Committee, paras. 410-429, approved by the Governing Body at its 209th Session, February-March 1979, and 202nd Report of the Committee, paras. 122-142, approved by the Governing Body at its 213th Session, May-June 1980); Case No. 1022 (211th Report of the Committee, paras. 515-525, approved by the Governing Body at its 218th Session, November 1981, 217th Report of the Committee, paras. 379-388, approved by the Governing Body at its 220th Session, May-June 1982, and 218th Report of the Committee, para. 18, approved by the Governing Body at its 221st Session, November 1982); and Case No. 1380 (248th Report of the Committee, paras. 363-380, approved by the Governing Body at its 235th Session, March 1987) (on this last case, see also para. 17 of the present Report)]. The MTUC was also a complainant in Case No. 879.

&htab;554.&htab;All of these complaints related, in part at least, to the difficulties which had been encountered by the Electrical Industry Workers' Union (EIWU) in seeking to organise workers in the electronics industry. These difficulties centre around the fact that the Trade Unions Act, 1959 (TUA) limits the right to associate within the same trade union to workers within a particular trade, occupation or industry, or within any similar trades, occupations or industries. It is for the Registrar of Trade Unions to determine what constitutes "similarity" for these purposes (subject to a right of appeal to the relevant Minister, and to judicial review by the High Court and, ultimately, the Supreme Court). Over the years, the Registrar has exercised this discretion so as to deny the EIWU the right to organise workers in the electronics industry - even in situations where a substantial proportion of workers in an enterprise had in fact joined the EIWU.

&htab;555.&htab;The complainants point out that in all four of the previous cases, the Committee asked the Government, inter alia, to take steps to ensure that the provisions on the establishment of first-degree trade unions are interpreted in a less restrictive manner by the administrative authorities. This the Government has consistently failed to do.

&htab;556.&htab;From the late 1970s onwards the MTUC has sponsored a number of attempts to obtain registration for a separate trade union in the electronics industry - the most recent application to the Registrar being lodged on 15 October 1988. However, it has proved impossible to obtain a favourable decision from the Registrar, the Minister or the High Court. Moreover, employers in the industry have actively obstructed both the organisational activities of the EIWU and MTUC-sponsored attempts to establish a separate union for the industry. On the other hand, the Registrar has, in recent years, agreed to register two "in-house" unions in the industry (the Union of Employees of Perwira Ericsson Peninsular Malaysia and the Union of Employees in Amalgamated Parts Manufacturers).

&htab;557.&htab;According to the complainants, at a meeting of the tripartite National Labour Advisory Council on 22 September 1988 the Minister announced that workers in the electronics industry would be permitted to form their own union. He reportedly stated that the industry was now sufficiently "strong and stable" to have a union, and that it was up to the workers to organise themselves "with the help of the MTUC". This wholly unexpected announcement was warmly welcomed by workers in the industry, by the MTUC and "even by the government-controlled press through their editorials". Despite intimidatory tactics on the part of some employers, hundreds of workers held meetings and decided to establish a new union, the National Union of Electronic Industry Workers. It was this union which formally applied for registration on 15 October 1988.

&htab;558.&htab;With equal suddenness, the Minister announced on 19 October 1988 that the Government had changed its mind, and that workers in the industry would be permitted only to establish "in-house" unions.

&htab;559.&htab;The complainants allege that this change of attitude was brought about largely as a result of pressure which was exerted on the Government by the foreign-owned employers in the industry.

&htab;560.&htab;The MTUC asserts that in-house unions in the electronics industry are totally unsuitable: first, because by and large workers in the industry are not experienced in trade unionism; secondly, because the possibility of victimisation and/or favouritism by management cannot be ruled out; thirdly, because there is a real possibility that the employers will seek to influence the leadership of such unions by means of subtle financial and material contributions to the unions; and fourthly, the establishment of such unions is bound to create economic imbalance in the industry. The MTUC also alleges that the Government's insistence on in-house unions is contrary to its own legislation relating to the registration and recognition of trade unions.

&htab;561.&htab;In its communication of 5 April 1989 the Government refers to earlier attempts by the EIWU to organise workers in the electronics industry and to that union's unsuccessful appeal to the High Court in 1985. The Government states that clear guide-lines have now been given to the EIWU to enable it accurately to identify and organise workers in the industries that fall under its scope, and that this situation has been accepted by the union. The Government states that the MTUC has also accepted the situation and that it is currently actively involved in assisting workers in the electronics sector to form unions of their own choice.

&htab;562.&htab;The Government points out that the wishes of the workers in a given workplace is one of the factors which is taken into account by the Registrar in considering applications for registration. This is reflected in the fact that four unions have been registered in the electronics sector in recent years: the Mitsumi Electric Employees' Union (registered 25 March 1986); the Perwira Ericsson Employees' Union (registered 30 May 1986); the Audio Electronics Employees' Union (registered 18 August 1987); and the RCA Sdn. Bhd. Employees' Union (registered 31 January 1989). In addition, the Registrar is currently considering the application for registration by the National Union of Electronic Industry Workers.

&htab;563.&htab;Finally, the Government emphatically states that under Malaysian law all registered unions have the same rights and responsibilities, be they in-house, industry-wide or whatever. It is not for the MTUC or any other body to determine the type of organisation workers should join - that is purely a matter for the workers in the unit concerned.

&htab;564.&htab;The complainants' allegations touch upon four aspects of the principles of freedom of association: (i) workers' right to establish and to join organisations of their own choosing; (ii) workers' right to establish and to join organisations of their own choice without previous authorisation; (iii) the need for protection against acts which are designed to promote the establishment of organisations which are under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, as required by Article 2 of Convention No. 98; and (iv) the need to ensure that the right of workers to form and join organisations of their own choosing is established and respected both in law and in fact.

&htab;587.&htab;In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) That the Government introduce legislation to amend sections 8 and 12 of the Trade Union Act so as to bring them into conformity with the principles of freedom of association.

(b) That pending legislative change the Government take steps to ensure that section 12 of the Trade Union Act is interpreted and applied in a manner which gives effect to the principle that the choice of the unions to which workers wish to belong should be that of the workers themselves. (c) That the Government use its good offices to ensure that the application for registration which was submitted by the National Union of Electronic Workers on 15 October 1988 is dealt with in an expeditious manner, and that it advise the Office as to the outcome of that application.

(d) The Committee expresses its concern at the fact that it has examined allegations of breaches of the right to organise in the electronics industry on five occasions. It considers that the Government should now give serious consideration to making use of the assistance of the ILO in order to help it bring law and practice relating to the registration of trade unions into conformity with the principles of freedom of association.

(e) The Committee urges the Government to respond to the allegation that its position in 1988 relating to the establishment of a trade union in the electronics industry was due to pressure exerted by the foreign-owned companies who dominate this industry.

&htab;588.&htab;The complaint appears in communications from the Trade Union of Employees and Workers in Commerce and the Workers' Trade Union Movement (MIT) dated 7 November 1988 and 12 January 1989, respectively. The Government replied in communications of 17 January and 6 March 1989.

&htab;589.&htab;Paraguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;590.&htab;The Trade Union of Employees and Workers in Commerce (SEOC) alleges in its communication of 7 November 1988 that a high police official interrupted a meeting of the SEOC executive committee held at the trade union's offices on 22 October 1988, and started to interrogate and intimidate the trade union leaders and members present. The SEOC adds that the Ministry of Justice and Labour refuses to grant members of the executive committee the credentials they need to represent the workers in labour disputes with their employers.

&htab;591.&htab;The SEOC also alleges that on 19 October 1988 the Labour Directorate informed the trade union of an opinion issued by the Ministry of Labour's legal counsel concerning the trade union's request of 28 April 1988 for the approval and registration of amendments to its by-laws. According to this opinion, "The request should be denied owing to the fact that the trade union has been leaderless since March 1986, and that it failed to hold a reorganisational meeting for the purpose of electing officers who might subsequently convene an extraordinary general meeting to deal with the amendment of the trade union's by-laws ... ". The trade union was told that in the light of its legal counsel's opinion, the Labour Directorate refused to consider the case; this made it impossible for the trade union to take its case to the courts. The SEOC denies that the trade union was leaderless, and states that notice of the meetings of 16 May 1986 and 4 June 1987 (which elected the trade union's executive committee) was sent to the Labour Directorate (the SEOC sent the ILO copies of these notices), but the Labour Directorate failed to reply.

&htab;592.&htab;The Workers' Trade Union Movement (MIT) alleges in its communication of 12 January 1989 that Mr. Milcíades Paredes, a leader of the National Metal and Allied Workers' Trade Union (SINOMA) was dismissed in December 1988 because he had demanded that the owner of the Transporte Fenix S.A. enterprise (handling the No. 39 transport route) pay workers the Christmas bonus. Although the Ministry of Justice and Labour was requested to intervene - since the law guarantees the job security of trade union leaders - the Ministry failed to resolve the matter. The MIT also alleges that trade unionists Gilberto Melo García, José Garcete, Gilberto Moreno, Victoriano Fleitas, Oscar Gómez, Alcides Soria and Vicente Segovia were dismissed because of their trade union activities and for demanding payment of the Christmas bonus and the reinstatement of trade union leader Milcíades Paredes.

&htab;593.&htab;In its communication of 17 January 1989 the Government categorically refutes the SEOC complaint and states that this trade union has failed to meet the requirements for the exercise of trade union rights, and seeks to correct its irregular situation by means of denunciations before international organisations. The Government states that it will send a detailed reply to the SEOC complaint.

&htab;594.&htab;In its communication of 6 March 1989, the Government states in reply to the complaint presented by the MIT that the job security of workers who hold trade union office is covered in Act No. 1172 of 13 December 1985 (enclosing a copy of the same); section 3 of this Act states that the courts are responsible for the reinstatement of trade union leaders who have been dismissed. The administrative authority, in other words, the Labour Directorate of the Ministry of Justice and Labour, only receives the list of persons who hold trade union office for the purpose of issuing certificates to that effect and informing the authorities, as needed. Thus, cases of dismissal on any grounds do not fall under the competence of this Ministry. However, the Ministry of Justice and Labour is currently doing its best to ensure that labour laws, which regulate the rights and obligations of workers and employers, are respected.

&htab;595.&htab;In general, the Committee must regret that the Government has not replied in greater detail to the allegations in this case.

&htab;596.&htab;As regards the dismissal of Mr. Milcíades Paredes, a trade union leader of the National Metal and Allied Workers' Trade Union, and that of seven members of that trade union for demanding payment of the Christmas bonus from the owner of the Transporte Fenix S.A. enterprise (covering the No. 39 route of the public transport system), the Committee observes that the Government has merely sent a copy of Act No. 1172 of 13 December 1985 (concerning protection of trade union leaders), and stated that the reinstatement of workers holding trade union office falls under the competence of the courts. Since the Government has not denied that the dismissals in question were due to trade union activities as alleged by the complainant organisation, the Committee requests the Government to promote necessary procedures to obtain the reinstatement of the dismissed trade unionists, and emphasises that in accordance with Article 1 of Convention No. 98, "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment."

&htab;597.&htab;The Committee requests the Government to quickly provide information on the allegations presented by the Trade Union of Employees and Workers in Commerce.

&htab;598.&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 promote necessary procedures to obtain the reinstatement of the eight trade unionists dismissed by the Transporte Fenix S.A. enterprise, and emphasises that in accordance with Article 1 of Convention No. 98, "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment." (b) The Committee requests the Government to quickly provide information on the allegations presented by the Trade Union of Employees and Workers in Commerce.