REPRESENTATION (article 24) - GREECE - C029, C105 - 1987

1. The Hellenic Airline Pilots Association (HALPA)

Closed

Report of the Committee set up to examine the representation made by the Hellenic Airline Pilots Association (HALPA) under article 24 of the ILO Constitution alleging non-observance by Greece of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By letter of 24 October 1986, the Hellenic Airline Pilots Association (HALPA) made a representation under article 24 of the Constitution of the International Labour Organisation alleging the non-observance by the Government of Greece of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105).
3. 2. The Forced Labour Convention, 1930 (No. 29), was ratified by Greece on 13 June 1952 and came into force for that country one year later, i.e. on 13 June 1953. The Abolition of Forced Labour Convention, 1957 (No. 105), was ratified by Greece on 30 March 1962 and came into force for that country one year later, i.e. on 30 March 1963.
4. 3. The provisions of the Constitution of the International Labour Organisation concerning representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such a statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
10. 5. In accordance with article 2, paragraph 1, of these Standing Orders, the Director-General brought the representation before the Officers of the Governing Body.
11. 6. At its 235th Session (March 1987), the Governing Body, on the basis of the report of its Officers, decided that the representation was receivable, and set up a Committee to examine it, composed of Mr. Giovanni Falchi (Government member, Italy), Chairman, Mr. Nejib Saïd (Employer member) and Mr. Heribert Maier (Worker member).
12. 7. In accordance with the provisions of article 4, paragraph 1 (a) and (c), of the Standing Orders, the Committee invited HALPA to supply by 30 April 1987 any further information that it wished to put before the Committee. The Committee invited the Government to submit its observations on the representation by 31 May 1987.
13. 8. The Government furnished its observations in a communication dated 12 June 1987. The Committee met in Geneva in November 1987 to examine the representation and the reply received. The Committee also had at its disposal information supplied by the Government for the purposes of the proceedings which had been initiated by HALPA and a number of other organisations in relation to the same events in the Committee on Freedom of Association, together with that Committee's report on the case in question. (Endnote 1) In addition, a copy of the decision (No. 2291) given by the Council of State of Greece on 22 May 1987 and published on 28 May 1987 concerning the request by HALPA that the civil mobilisation be lifted was brought to the attention of the Committee by a communication from HALPA, dated 8 October and received on 16 October 1987, and a similar communication from the Government, dated 6 October and received on 6 November 1987.
14. II. Examination of the representation
15. 1. The allegations made by the Hellenic Airline Pilots Association (HALPA)
16. 9. The Hellenic Airline Pilots Association (HALPA) (Endnote 2) alleges that the Government of Greece has failed to secure the observance of two ratified Conventions: the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). HALPA contends that the failure of Greece to comply with its obligations under these Conventions stems from measures taken by the Government following an industrial dispute in the airline Olympic Airways.
17. 10. According to the representation, the facts of the matter are as follows: at the beginning of June 1986 the Hellenic Airline Pilots Association (HALPA), following a preliminary agreement with the management of Olympic Airways, made efforts to reach a final agreement. The discussions were concerned with wages and the effects of new taxation laws. After the breakdown of negotiations between the management and the union and the refusal of the Government to honour a previous agreement, HALPA convened a general assembly of unionised pilots on 5 and 6 June 1986, at which, voting by secret ballot, 271 members approved a variety of direct measures, including a strike, against 39 dissenting votes, out of a total attendance of 360. The general assembly also authorised the union council to call a strike, which was to begin on 14 June. The council officially announced the general assembly's decision to the management of Olympic Airways on 7 June, in accordance with the law.
18. 11. At the same time, HALPA provided the management with a list of pilots and flight engineers who were to cover essential services as defined in Act No. 1264/1982. In providing a list of five crews (one for each type of aircraft), HALPA meant to ensure that the legal requirements with respect to the maintenance of essential services were met. In its opinion the proclamation of civil mobilisation in order to cover essential services was not necessary, as these services were already covered by HALPA members, and such civil mobilisation was a form of compulsory labour to break the strike.
19. 12. On 9 June the Minister of Transport informed the HALPA council that the Government had decided to proclaim a state of national emergency and then order the civil mobilisation of pilots and flight engineers who had taken similar action unless HALPA called off all the action it had scheduled and made an official announcement to that effect by 10 p.m. on the same day. The council replied to the Government that it did not have the authority to revoke the decision to strike, since the union's rules laid down that such a decision could be revoked only by the general assembly. Nevertheless, it indicated its readiness to convene a new general assembly immediately for the purpose of conveying to it the Government's ultimatum. On that same day the HALPA council convened a new general assembly for 11 June, which left enough time for deliberation since the strike had been called for 14 June.
20. 13. Nevertheless, on 10 June 1986 the Government proclaimed the civil mobilisation of Olympic Airways pilots and flight engineers by means of Ministerial Decrees Nos. Y164 and Y165. On the same day, following the civil mobilisation, the pilots and flight engineers were individually summoned to appear before Olympic Airways officials and offer their services, and almost simultaneously a number of them were arrested for failing to comply with the civil mobilisation. HALPA points out that among the persons arrested were pilots who were on sick leave, on annual leave or stranded in foreign airports due to the non-arrival of Olympic Airways aircraft, and who were arrested on their return; others were simply notified of their dismissal, and at the same time criminal, administrative and civil proceedings were initiated, pilots were jailed, property was sequestered and families were intimidated.
21. 14. A new HALPA general assembly held on 24 June 1986 decided to cancel the strike, influenced partly by the threat of continuing prosecutions and partly by assurances that "the Government's intention was not to resort to reprisals or victimisation, and that negotiations were to start to find a way of working out the problems".
22. 15. Nevertheless, according to HALPA's communication of 24 October 1986, at that time prosecutions were still pending and 45 pilots and 15 flight engineers still remained unemployed. At the same time the pilots and flight engineers drafted remained subject to civil mobilisation and were therefore supposed to work, if not in compliance with their employment obligations, anyway in compliance with their duties under the provisions of the Civil Mobilisation Law. Yet when they reported for duty they were not offered work. Furthermore the dismissed pilots and flight engineers, still subject to civil mobilisation although not accepted for duty, were forbidden while under mobilisation to seek other employment. In the meantime, in the place of dismissed pilots, Olympic Airways were using the services of foreign pilots who were being paid in foreign currencies at twice the national rates or more.
23. 2. The Government's observations
24. 16. In its communication of 12 June 1987, the Government, citing Decision No. 575/1966 of the Plenary Assembly of the Council of State, states that an order of civil mobilisation issued for the purpose of avoiding serious disturbances in the urban transport network of the country by enabling a large part of the population to travel is linked to questions of vital importance and does not contravene either the provisions of the Constitution respecting freedom or those of Convention No. 105. The Government adds that there is no case law upholding a different viewpoint, that the Hellenic Airline Pilots Association has appealed against the decree for the mobilisation of its members to the Council of State as a result of which the matter is in abeyance pending its consideration by that body, and that the Government will report on any developments in this connection. (Endnote 3)
25. 17. More detailed information supplied by the Government on 16 October 1986 in answer to allegations of infringement of freedom of association explains the facts in the following terms. After the order of mobilisation was issued, a number of the airline company's staff refused, without any justification, to comply with the order of mobilisation and return to work. According to the relevant legislation, a wage earner's refusal to return to work and fulfil his contractual obligations is considered as a unilateral termination of his employment contract, provided his absence is not due to circumstances beyond his control, and regardless of whether or not a state of mobilisation has been proclaimed. Consequently, Olympic Airways considered as terminated the contracts of 48 pilots and 15 flight engineers. Nevertheless, after reviewing the cases of three pilots and finding that their refusal to work was based on circumstances beyond their control, Olympic Airways revoked the dismissal of these three persons. On the other hand, as concerns the other dismissed employees (45 pilots and 15 flight engineers), Olympic Airways considered that they had, of their own volition, terminated their contracts of employment and that their dismissal was not subject to review.
26. 18. Furthermore, according to the same communication of 16 October 1986, the public prosecutor initiated judicial proceedings against the persons concerned for breaches of the Civil Mobilisation Law, but all the pilots arrested and imprisoned for infringement of Legislative Decree No. 17 of 1974 on "civil mobilisation in the event of emergency" were released under bond after periods of imprisonment ranging from three to eight days, and no one is currently being held.
27. 19. As the Government indicated in its letter dated 6 October 1987 communicating the decision of the Council of State (No. 2291) given on 22 May 1987, the Council of State closed the procedure brought by HALPA against the Government's decisions ordering the civil mobilisation of its members. The Council of State held that the mobilisation order and, consequently, the call-up of those concerned were not to have effect beyond the period of the strike declared and were thus no longer in force, and that the possible civil or penal sanctions for non-compliance with the call-up did not justify pursuing the question before the Council of State.
28. 20. In addition, the Government stated that the pilots and flight engineers who had been dismissed for refusing to comply with the civil mobilisation order had been reinstated in their positions following an agreement between Olympic Airways and the persons concerned. The Government thus considered that any damage of an administrative nature produced by the application of the mobilisation order had disappeared.
29. 3. The Committee's conclusions
30. 21. In its communication of 12 June 1987, the Government states that its action was not in breach of the provisions of the country's Constitution and was consistent with national case law, and that the Hellenic Airline Pilots Association has appealed against the decree for the mobilisation of its members to the Council of State. The Committee recalls that the question of the conformity of the Government's action with the national Constitution and legislation does not come within its terms of reference, but that it is called upon to assess the compliance with international labour Conventions Nos. 29 and 105, ratified by Greece. The position in regard to these two Conventions is accordingly examined below.
31. (i) Position in regard to the Forced Labour Convention, 1930 (No. 29)
32. 22. For the purposes of Convention No. 29, forced or compulsory labour means "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily" (Article 2, paragraph 1). However, certain types of work are excluded from the scope of the Convention by virtue of Article 2, paragraph 2, which mentions, inter alia, under (d), "any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population".
33. 23. In the present case, the pilots and flight engineers of Olympic Airways initially offered their services voluntarily under the terms of their contracts. However, according to the indications given by the Government (see paragraph 18 above), their contracts of employment came to an end upon their refusal to return to work; consequently, they were no longer bound by a commitment freely entered into, but were simply subject to call-up on the basis of the civil mobilisation ordered by the Government.
34. 24. Ministerial Decrees Nos. 164 and 165 of 10 June 1986, concerning the civil mobilisation of the pilots and flight engineers of the civil aviation company Olympic Airways, and Ministerial Decree No. YPA/PSEA/A/522 of the same date, ordering the call-up of the civilians concerned, refer inter alia to section 2, subsection 5, and sections 13, 19, 20, 22, 23 and 35 of Legislative Decree No. 17/1974 respecting civilian organisation in case of exceptional necessity. Under section 35 of this Legislative Decree any person called up who refuses or neglects to offer his services is liable to penal sanctions.
35. 25. The position of the persons called up accordingly meets the two criteria (menace of a penalty and absence of a voluntary offer of services) embodied in the definition of forced or compulsory labour given in Article 2, paragraph 1, of the Convention, as quoted above in paragraph 23. It remains to be determined whether such work is covered by the exception provided for in cases of emergency as defined by the Convention (Article 2, paragraph 2(d)).
36. 26. As shown by the examples listed in the Convention, the concept of emergency implies a sudden and unforeseen event calling for immediate action to protect the lives or the well-being of the whole or part of the population. Point 5 of Ministerial Decree No. YPA/PSEA/A/522 ordering the call-up of the pilots and flight engineers concerned refers to "the fact that the strikes declared by the personnel in question prevent the operation of air traffic and directly endanger the economic and social life of the country as well as being prejudicial to the national interest". As emphasised by the Committee of Experts on the Application of Conventions and Recommendations, inter alia in paragraphs 63 to 66 of its 1979 General Survey on the abolition of forced labour and in the comments it has addressed to the Government of Greece with respect to Convention No. 29, concepts such as endangering "the economic and social life of the country" or being "prejudicial to the national interest" go beyond the strict context of an emergency as defined by the Convention, and the call-up of labour for services considered to be essential should be possible only where the requirements of Article 2, paragraph 2(d) are fulfilled.
37. 27. The Committee notes that in comments it has been addressing to the Government for some years the Committee of Experts on the Application of Conventions and Recommendations has drawn attention to the incompatibility with the Convention of the powers conferred by Legislative Decree No. 17 of 1974 respecting the civilian organisation of the state of emergency. The Committee of Experts has recalled inter alia that labour may be called up by virtue of emergency powers only in so far as it is strictly necessary to deal with circumstances endangering the existence, personal safety or health of the whole or part of the population.
38. 28. In the present case, the mobilisation of civilians was ordered in anticipation of a strike in civil transport, notice of which had been lawfully given one week in advance. According to the unrefuted allegations of HALPA, the legal requirements with respect to the maintenance of services deemed to be essential had been complied with by the strikers; moreover, once called up the employees were given no work to do. In these circumstances, the civil mobilisation order does not meet the criteria of the exception provided for in Article 2, paragraph 2, of the Convention to deal with cases of emergency. Furthermore, in so far as those called up were prohibited from engaging in any other activity, the obligation to remain at the disposal of the airline constituted a form of compulsory service, irrespective of the use to which it was put.
39. 29. In the light of the above considerations the Committee concludes that Convention No. 29 was not being observed at the time of the civil mobilisation of the pilots and flight engineers.
40. 30. It appears from the decision of the Council of State of 22 May 1987 that the mobilisation order and, consequently, the call-up of those concerned were not to have effect beyond the period of the strike and thus are no more in force. According to the Government the pilots and flight engineers concerned have been reinstated in their positions on the basis of an agreement concluded between them and Olympic Airways. These questions having been settled, the Government should indicate in its next report on the application of the Convention what steps it has taken to ensure that no judicial or administrative action be pursued which might involve the imposition of the sanctions provided for by Legislative Decree No. 17 of 1974 on those concerned. More generally, the Government should speedily take the necessary measures to bring its legislation in this respect into line with the Convention, in response to the comments made by the Committee of Experts to this effect. The Committee set up to examine the representation considers that it will be for the Committee of Experts to pursue this matter when examining the Government's reports on the application of the Convention.
41. (ii) Position in regard to the Abolition of Forced Labour Convention, 1957 (No. 105)
42. 31. Convention No. 105 prohibits recourse to forced or compulsory labour, inter alia, as a means of labour discipline and as a punishment for having participated in strikes (Article 1(c) and (d)). As recalled by the Committe of Experts on the Application of Conventions and Recommendations in paragraph 110 of its 1979 General Survey on the abolition of forced labour, forced or compulsory labour as a means of labour discipline may be of two kinds. It may consist of measures to ensure the due performance by a worker of his service under compulsion of law (in the form of physical constraint or the menance of a penalty) or of a sanction for breaches of labour discipline with penalties involving an obligation to perform work. In the latter case, the Committee of Experts has however distinguished between penalties imposed to enforce labour discipline as such (and therefore falling within the scope of the Convention) and penalties imposed for the protection of a general public interest, even though they punish an act constituting a breach of labour discipline. Thus the Convention does not protect persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services or which are committed either to the exercise of functions that are essential to safety or in circumstances where life or health is in danger. However, in such cases there must exist an effective danger, not mere inconvenience. Furthermore, the workers concerned must remain free to terminate their employment by reasonable notice.
43. 32. As concerns penalties involving compulsory work imposed for participation in a strike, the Committee of Experts stated in paragraphs 126 and 127 of its 1979 General Survey that a suspension of the right to strike enforced by sanctions involving compulsory work under emergency legislation or powers is compatible with the Convention only in so far as it is necessary to cope with cases of force majeure in the strict sense of the term - namely when the existence or well-being of the whole or part of the population is endangered - provided that the duration of the prohibition is limited to the period of immediate necessity. The same criteria apply where legislative provisions permitting the call-up of labour are used to call up workers who are on strike under the threat of penalties involving compulsory work if they refuse to obey the call-up order.
44. 33. In the present case, the call-up of pilots and flight engineers appears to be a measure to ensure the due performance by the persons concerned of their service under compulsion of law (in the form of the threat of a penalty); it accordingly corresponds to the first form of compulsory labour imposed as a means of labour discipline to which the Committee of Experts has referred (see paragraph 31 above), and is therefore contrary to Article 1(c) of Convention No. 105.
45. 34. Furthermore, the call-up of pilots and flight engineers ordered in pursuance of Legislative Decree No. 17 of 1974 rendered applicable to the persons concerned the penalties provided for by that legislative decree in the event of refusal or failure to obey the call-up order. These penalties include terms of imprisonment involving the obligation to perform prison labour, which, if imposed on the persons concerned, would appear as punishment either for a breach of labour discipline or for having participated in a strike, and would accordingly likewise be contrary to Convention No. 105 (Article 1(c) or (d)), since the exceptions identified by the Committee of Experts, particularly for cases of emergency and essential services, are not applicable in the present instance, as already shown with respect to Convention No. 29 (see paragraphs 26 to 28, 31 and 32 above). In relation to Convention No. 105 also, the Government should therefore give assurances that the penalties referred to will not be imposed upon the pilots and flight engineers concerned.
46. 35. The Committee accordingly considers that the call-up of pilots and flight engineers took place under conditions contrary to both Convention No. 29 and Convention No. 105.
47. 36. The conclusions set out in paragraph 30 above with respect to Convention No. 29 are equally applicable to Convention No. 105 as concerns the need to bring Legislative Decree No. 17 of 1974 into line with the Convention and to ensure that no penalties contrary to the Convention are imposed on the persons who had been called up.
48. III. Recommendations of the Committee
49. 37. The Committee recommends the Governing Body:
50. (a) to approve the present report, and, in particular, the conclusions set out in paragraphs 29 and 35, namely that the call-up of the pilots and flight engineers of Olympic Airways took place under conditions contrary to the provisions specified of the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105);
51. (b) to invite the Government of Greece, bearing in mind the conclusions set out in paragraphs 30 and 36, to take the necessary steps -
52. (i) to ensure that the relevant legislation, including in particular Legislative Decree No. 17 of 1974, is brought into line with the forced labour Conventions, as already requested by the Committee of Experts on the Application of Conventions and Recommendations;
53. (ii) to ensure that no judicial or administrative action be pursued which might involve the imposition of the penalties provided for by Legislative Decree No. 17 of 1974 on those concerned;
54. (c) to invite the Government of Greece to include in the reports it supplies under article 22 of the Constitution on the application of Conventions Nos. 29 and 105 full information on the measures taken, in accordance with the recommendations made above, to secure observance of these two Conventions, so as to enable the Committe of Experts on the Application of Conventions and Recommendations to follow the matter;
55. (d) to declare the closure of the procedure initiated as a result of the representation in question.
56. Geneva, 13 November 1987 (signed) G. Falchi, Chairman,
57. N. Saïd,
58. H. Maier.
59. Endnote 1
60. 251st Report of the Committee on Freedom of Association, Case No. 1384 (GB.236/8/11, paras. 161 to 190). The Committee has drawn the Government's attention to the principle that workers and their organisations should be able to resort to strikes as a legitimate means for defending their social and economic interests without being subject to anti-trade union reprisals, and expressed its hope that this principle would be fully respected in the future.
61. Endnote 2
62. See the text of the representation appended to the report of the Officers of the Governing Body concerning the receivability of this representation (GB.235/17/10).
63. Endnote 3
64. As was already indicated in para. 8 above, the decision by the Council of State was given on 22 May 1987 and brought to the attention of the Committee in October 1987.