87th Session
Geneva, June 1999
Report of the Committee on the Application of Standards (...continued) |
Convention No. 87: Freedom of Association and Protection of the Right to Organise, 1948
Bangladesh (ratification: 1972). The Government has supplied the following information:
The Government of Bangladesh has already given detailed replies to the questions raised by the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations and reiterates the replies already furnished to these Committees. However, as desired by the Committee of Experts, the Government would like to give the following further clarification and information:
Managerial and administrative function
The personnel employed for managerial and administrative functions are part of management and as such during collective bargaining, with the workers' representatives (CBA), such staff shall be obliged to negotiate on behalf of the employers. Because of this law and practice position, the inclusion of managerial and administrative staff in the definition of "worker" permitting them to join trade unions (workers' organizations) should be incompatible with tripartism. Article 38 of the Constitution of the People's Republic of Bangladesh guarantees the right to freedom of association to all citizens including the managerial and administrative staff, subject only to reasonable restrictions imposed by law in the interests of morality or public order. The substance of the right to associate covers any legitimate profession, occupation, trade, vocation or calling, and no restrictions foreseen under article 38 of the Constitution have so far been applied. Managerial and administrative staff come within the definition of "employer" under section 2(viii) of the Industrial Relations Ordinance (IRO), 1969, and in that capacity they can form their trade union under section 2(xxvi) of the IRO as well. The Committee of Experts queries how, since article 38 of the Constitution applies to citizens only, non-citizens carrying out managerial or administrative functions are able to exercise the right of association. This is a complicated legal issue and needs to be examined in detail by the Ministry of Law, Justice and Parliamentary Affairs. The correct legal practice will be determined in consultation with this Ministry and will be transmitted to the Committee of Experts in due course. Information on the number and size of associations in the public and private sectors that have been established to further the occupational interests of those carrying out managerial and administrative functions is being collected and will be sent to the Committee of Experts in due course.
About the exclusion of the government servants and the workers of the Security Printing Press from trade unions, it is stated that all such matters are still under examination by the Labour Code Review Committee, a tripartite body which has been given the responsibility to review the draft Comprehensive Labour Code prepared by the National Labour Laws Reforms Commission. The Review Committee is working regularly, and its latest meeting was held on 4 March 1999. The Committee of Experts on the Application of Conventions and Recommendations has remarked that the Government has been referring to the making of the new Comprehensive Labour Code for a number of years. The Government hopes that the Committee appreciates that the proposed Labour Code will compile 44 labour laws into one comprehensive code and as such it is a gigantic task. About the exclusion of the staff of the Security Printing Press from trade unions, it is further said that they are engaged in confidential work and allowing them to form trade unions presents grave risks. Certain provisions in the Government Servants Conduct Rules, 1979, which require that government servants shall be obliged to receive prior permission from the authorities to issue publications on matters other than culture, sports, development works and scientific matters are also receiving the attention of the Labour Code Review Committee. In addition, the matter needs to be and will be examined by the Ministry of Establishment which is the competent authority to decide matters affecting the rights and privileges of government servants. The outcome of all such examination will be forwarded to the Committee of Experts in due course.
Restrictions regarding holding trade union office
The Committee of Experts has observed that section 7-A(I)(b) of the Industrial Relations Ordinance (IRO), 1969, prevents persons who are not current or former employees of an establishment or group of establishments during the previous year from becoming members or officers of a trade union in an establishment or group of establishments. It also noted that section 3 of Act No. 22 of 1990, which provides that a worker dismissed for misconduct shall not be entitled to become an officer of a trade union, entails the risk of interference by the employer through the dismissal of trade union members or leaders for exercising legitimate trade union activities. The Committee has urged the Government to take measures to amend the provisions to bring them into conformity with the Convention. The Committee is informed that the employer cannot dismiss a worker in an arbitrary manner without giving him an opportunity to show cause and without being heard. The IRO, 1969, does not give the employer any chance of arbitrary interference. Any dismissal of a worker for trade union activities, under section 15 of the IRO, 1969, would be an unfair labour practice and a punishable offence for the employer. Besides, an aggrieved worker can also have recourse to judicial redress in the labour court. The Government is of the opinion that the workers have full freedom to elect their representatives and consequently no amendment to the aforesaid legislative provisions is required. The Committee of Experts is urged to appreciate that there is no contradiction between the present Bangladesh law and the Convention. The Committee is also informed that this matter, too, will be placed before the Labour Code Review Committee for examination in the true spirit of tripartism.
Excessive external supervision
The Committee has expressed the view that there does not appear to be any limit on the powers of the Registrar of Trade Unions under Rule 10 of the Industrial Relation Rules, 1977, to enter trade union premises and inspect documents, etc., and that this power is not subject to judicial review. Accordingly, the Committee has asked the Government to amend this provision to bring it into conformity with the Convention. The Government again reiterates its replies that many times the general members of trade unions are deprived of their rights by union executives and it is to safeguard the interests of the general members of trade unions that Rule 10 was made. Besides, the abuse of authority and excesses, if any, of the Registrar of Trade Unions, are offences, and the aggrieved union can seek judicial redress in the appropriate court of law. The Registrar of Trade Unions has always used his powers of inspection with due discretion, and there has been no allegation about abuse of authority by the Registrar. While the rights of the trade unions to function freely are recognized, the necessity of regulating the trade union activities cannot be dispensed with in the interests of safeguarding the general workers' rights.
Registration requirements
The Committee has reiterated that sections 7(2) and 10(1)(g) of the Industrial Relations Ordinance, 1969, which impose a minimum membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments for initial and continued union registration is not in conformity with Article 2 of the Convention and, therefore, measures should be taken to rectify this. The Government reported that the 30 per cent membership requirement has checked the multiplicity of trade unions, whose mushroom growth is obviously counterproductive for workers. As such, amendment to the provisions would serve no useful purpose, the Government considers that the spirit of such provisions of the IRO conform to the Convention. The Committee of Experts has further pointed out that the Committee on Freedom of Association has raised other related concerns, namely, that there is no legal provision enabling the registration of a trade union on a nationwide basis and that, pursuant to a court decision, registration of unions comprising workers from different establishments owned by different employers is prohibited. The Committee would appreciate that such a judicial ruling given by the highest court, the Supreme Court, is binding upon the Government. However, such provisions of the IRO are also under examination by the Labour Code Review Committee.
Export processing zones
The Committee of Experts has held that the Export Processing Zones Authority Act, 1980, which has made the zones union free, is a serious violation of the important right to unionize and urged the Government to take measures without further delay to ensure that workers in Export Processing Zones (EPZs) are entitled to exercise all rights under the Convention.
The Committee of Experts is informed in this regard that although the workers employed in the Export Processing Zones cannot, at present, form trade unions, they have their associations and solve their grievances through direct dialogue. In fact, the workers in the EPZs enjoy much better service conditions and fringe benefits than workers in other areas. Experience has shown that the workers in EPZs never raised an issue against the employers in matters of wages, service conditions, etc. Union-free EPZs have attracted foreign direct investment which has resulted in considerable job creation (and employment), and workers are amongst the major beneficiaries. In view of the low level of development, EPZs in Bangladesh are an economic necessity. The principles set forth in the Declaration of Philadelphia are the basis of ILO Conventions and article V of this Declaration states, inter alia, that the manner of application of such principles must be determined with due regard to the stage of social and economic development reached by each people. Thus, in the economic interests of a least developed country like Bangladesh, union-free EPZs are considered essential for job creation and employment.
Restrictions on rights to strike
As regards the Committee's views on the restrictive provisions on strikes and its advice to the Government to amend the legislation to restrict the right to strike only in genuine crisis situations, the replies given on earlier occasions are reiterated. The Committee of Experts is also assured that trade union activities in the banking sector have not been suspended. In fact, no restrictions are imposed on legal strikes and the restrictions are applied on illegal strikes only. When strikes are prohibited by the Government, the Government must immediately refer the matter to the labour court for adjudication. Penalties, including imprisonment for illegal industrial action, can be imposed only after a judicial verdict is passed in accordance with law and, as such, the authorities cannot resort to any penal action arbitrarily.
Bangladesh's proneness to natural calamities is well known to the ILO. Even as late as 1998, the worst flood in the country caused massive damage to agricultural and physical infrastructures. Rehabilitation and reconstruction of the flood damage will take years. In such pressing circumstances, the restrictions on strikes and other forms of industrial action are quite justified and are in conformity with the justification permitted by the Committee of Experts.
The Committee will be provided with information about the reported rejection of several applications for registration by trade unions in the textile, metal and garment sectors, as requested.
Finally, the Government informs the Committee of Experts that all the points that it raised are being examined by the tripartite Labour Code Review Committee and the Committee of Experts will be informed of the decision in due course. The Government welcomes ILO technical assistance for advice as to how the Government can implement the Convention in its national situation.
In addition, a Government representative emphasized that Bangladesh was a pluralist and democratic country fully committed to the values of pluralism and democracy. In matters of the making and implementation of policy, it sought to operate in a system of total transparency, which was very much a part of its traditional cultural and political ethos. Although proud of this tradition, he was well aware that, like any other society, his country was not perfect. In the field covered by the Committee today, in Bangladesh, as elsewhere, much remained to be achieved. However, more than others, Bangladesh was cognizant of its deficiencies. It was also aware that some gaps still remained between elements of the existing legislation and the requirements of the Convention. It was, therefore, grateful to the Committee for having drawn attention to some of these issues, which it wished to address today with the utmost seriousness.
For that purpose, he informed the Committee that the Ministry of Labour had decided to establish a mechanism within the Ministry to thoroughly examine the issue and make recommendations to correct any discordance between the Convention and the existing legislation. He expressed confidence that this measure would take Bangladesh a long way forward towards the achievement of its goals. It had proven its good will by providing a point-by-point response to all the issues which had been raised by the Committee of Experts. He hoped that the answers would give satisfaction. However, if some of the members of the Committee were not satisfied by the information provided, that would not be due to any lack of intention or political commitment on the part of his country. It had to be appreciated that the constraints faced by the country were many and varied. However, he expressed the conviction that Bangladesh could achieve its desired goals, particularly since its authorities assigned the highest priority to democratizing every aspect of society. He then referred to the written information provided by the Government.
The Employer members thanked the Government representative for the information which he had provided. They noted that the Committee of Experts had been making comments on the case since 1983 and that the Conference Committee had discussed it in both 1995 and 1997. However, it still appeared that many of the elements of the case were the same as in 1995.
The Committee of Experts had raised several issues relating to various aspects of the labour law in the country. The first of these concerned the right of association of managerial and administrative personnel. The essential issue in this respect concerned the manner in which such categories of staff were determined. The Committee of Experts had also requested information on the situation in relation to foreign workers who were working at the managerial level. In the written information provided, the Government indicated that the issue would be examined by the Ministry of Law, Justice and Parliamentary Affairs. The comments of the Committee of Experts had given the impression that there were limitations on the right to associate of such personnel and the Government should, therefore, be requested to provide precise information in this regard. The issue revolved around the application of article 38 of the Constitution, which contained certain restrictions. However, the Government had stated that none of these restrictions had so far been applied. Information was needed on the actual situation in this regard.
The second question concerned the exclusion of public servants and workers in the Security Printing Press from the right to establish trade unions. The Government continued to state that this matter was still being reviewed by the tripartite Labour Code Review Committee, which was a mechanism designed to propose corrections in the law. However, the Government had been making the same statement for some time. How long would it be necessary to wait? Did the Government intend to change the law and, if so, when? It had been referring to the work of the Labour Code Review Committee in this respect for at least five years.
The third issue concerned the restrictions placed on the holding of trade union office. The Committee of Experts was concerned in particular by the restrictions on the holding of trade union office by workers who had been dismissed for misconduct, which raised the possibility of the arbitrary dismissal of trade union members. It would be necessary for the Committee to be provided with information on the practical impact of this provision in terms of the number of cases of arbitrary dismissal of trade union leaders.
A fourth problem concerned the powers of supervision of trade unions of the Registrar of Trade Unions. The principal concern raised by the Committee of Experts in this regard was that there did not appear to be any limits on the powers of the Registrar to enter premises and inspect documents and that these powers were not subject to judicial review. Although the Government representative had referred to the possibility of obtaining judicial redress, this did not constitute a limit on the exercise of these powers in the sense referred to by the Committee of Experts.
With reference to the requirement that a trade union have a minimum membership of 30 per cent of the total number of workers employed in the establishment or group of establishments for its initial and continued registration, the Employer members stated that the percentage was set at an arbitrarily high level and certainly constituted an obstacle to union representation, in particular where there was no system of exclusive representation. Once again, the Government had stated that the matter was under review by the Labour Code Review Committee.
On the question of the restrictions placed on the establishment of unions in export processing zones (EPZs), the Committee of Experts had underlined that freedom of association was a fundamental right which could not be denied, even temporarily. Once again, amendments had been proposed by the National Labour Laws Reforms Commission, but the questions remained as to how long the process would take.
With reference to the issue of the right to strike in Bangladesh, the Employer members referred to their well-known position on the question. The problem was once again that, on the matters of concern to the Committee of Experts, no information had been provided on the practical impact of the policy adopted by the Government. The information available did not permit any picture to be formed of the extent to which the right to strike was restricted in the country.
The large number of issues involved in the case did not lead to any easy conclusions. A number of the issues were being examined by various review bodies, but no concrete proposals appeared to have been made. It was clear that the Government could not continue to hide behind these review bodies forever as an excuse for legislative change. Something, therefore, needed to be done. In view of the lack of information to provide a basis for evaluating the impact of national policies on freedom of association in the country, the Government should be urged to provide verifiable and concrete information on the issue under examination.
The Worker members thanked the Government representative for the information he had provided to the Committee and assured him that the Worker members were fully aware of the challenges faced by his Government due to the low level of development of the country. However, they wished to remind him that the Convention established core human rights which applied equally to all countries, regardless of their level of development. Indeed, it was the long-held view of both the Worker members and the ILO as a whole that respect for freedom of association would contribute greatly to the development of Bangladesh, rather than posing an obstacle to it.
Having listened carefully to the statement of the Government representative, and despite his tone of sincerity, the Worker members were not convinced that any new information had been provided of which the Committee had not already been aware when the case had been discussed in both 1995 and 1997. Unfortunately, it appeared clear that none of the action promised by the Government in the past had materialized.
The tripartite National Labour Laws Reforms Commission referred to by the Government representative had been established in 1992. The Committee had been assured three years later in 1995 that the work of the above Commission was proceeding and in 1997 had expressed the hope that it would rapidly complete its work on revising the labour legislation and that the new Labour Code would take into account the numerous and repeated observations of the Committee of Experts and the Conference Committee. But another two years had elapsed without any further progress. Moreover, the Committee had been informed that another mechanism would be created within the Ministry of Labour to make recommendations to bring the law into compliance with the Convention. The relationship between this new mechanism and the National Labour Law Reforms Commission was unclear and the Worker members requested additional information from the Government in this regard.
The Committee of Experts had confirmed the lack of progress and had once again strongly criticized several discrepancies between national legislation and Articles 2 and 3 of the Convention. In particular, it had noted the denial of the right to organize for workers in EPZs, restrictions on the right of association of public servants, the absence of legislation granting the right to organize to persons carrying out managerial or administrative functions, and the requirement for unions to have a minimum membership of 30 per cent of the workers employed in the establishment in order to be registered. The Committee of Experts had also criticized the excessive external supervision by the authorities over the internal affairs of trade unions, as well as the requirement to be employed in an establishment or group of establishments in order to hold trade union office and the prohibition on workers who had been dismissed for misconduct from standing for trade union office. Further criticisms included the restrictions on the right of workers' organizations to organize their activities and formulate their programmes without interference by the public authorities and the impossibility to register a trade union on a nationwide basis or a union which was composed of workers from different establishments owned by different employers. In particular, the Committee of Experts had referred to the excessive restrictions on the right to strike. The Committee of Experts had been commenting for many years on this long list of serious violations.
With regard to the issue of excessive external supervision, the Worker members repudiated the Government's argument that the general members of trade unions were often deprived of their rights by union executives and that supervision was to safeguard their interests. The experience of many Worker members was that workers were normally very effective in controlling their leaders, provided that transparent and democratic trade union structures were in place. It was structures of this nature that the Government should be encouraging through its labour laws if it were truly serious about safeguarding workers against the abuse of power by union leaders.
The Worker members also found the comments made by the Government representative concerning EPZs to be troubling. The Government had insisted that it was in the economic interests of a least-developed country such as Bangladesh to have union-free EPZs for the purposes of job creation and attracting foreign direct investment. This statement was a blatant example of the downward pressure on labour standards produced by globalization when the rules governing the process were incomplete and did not address core labour standards. This was a matter of particular concern since a large and increasing segment of the manufacturing sector in Bangladesh, particularly in the textile and garment industry, was located in EPZs, which were multiplying rapidly throughout the country and employing hundreds of thousands of workers. The Committee on Freedom of Association had examined complaints of violations, particularly in the garment and textile sector, where trade unions were unable to obtain registration. Many of the factories in the sector were quite small and employed fewer than 100 workers. In addition to the absence of freedom of association in EPZs, the combination of the 30 per cent requirement for initial and continued registration as an enterprise trade union and the prohibition on organizing a union on a nationwide basis, or a union composed of workers from different establishments owned by different employers, effectively deprived much of the manufacturing sector of the right to freedom of association.
Another example of the downward pressure exerted by globalization on labour standards was the reports that the World Bank had urged the Government to take legislative measures to prevent bank workers organizing a trade union. Despite the assurances provided by the Government that trade union activities in the sector had not been suspended, there had been press reports that trade union activities in the Central Bank had been banned due to what the Government had termed excessive union activities. Problems had also been reported in other commercial banks, both private and public. The Worker members called on the Government representative to provide more up-to-date information on the matter.
The Committee of Experts had once again repeated the comments that it had been making for many years concerning the limitations on freedom of association in the public sector and had urged the Government to take the necessary measures without any further delay to ensure that all workers, without distinction whatsoever, were guaranteed the right to organize. Despite the request for the Government to indicate any progress made in this regard, the Worker members were not convinced that the Government was taking the recommendations of the Committee of Experts seriously.
Finally, with regard to the right to strike, the Worker members requested the Government representative to provide information on the number of legal economic strikes which took place in the country each year and on the number of occasions on which an employer had been punished for violating laws in relation to workers engaged in industrial actions, either legal or illegal. Such statistics would provide a clear indication in practice as to whether, as claimed by the Government representative, there were really no restrictions on legal strikes.
The Worker members recalled that Bangladesh had ratified the Convention 27 years ago. The lack of progress in its application in law and practice for so many years was deeply troubling, particularly in view of the indication provided once again today that the Government had no intention of applying the Convention in certain key areas which were not in conformity with its provisions. A credibility problem had now emerged in gauging the Government's true intentions. Unfortunately, its actions spoke louder that its words. In practice, freedom of association was restricted in the public sector, EPZs, much of the manufacturing sector and the services sector. These deep concerns should be stated in the Committee's conclusions in the strongest possible terms.
The Worker member of Japan recalled that the discrepancies between national law and the Convention noted by the Committee of Experts included the restrictions placed on the right of association of public servants. He emphasized in this respect that the Convention guaranteed the freedom of association of workers in both the public and private sectors, with the sole exceptions of such services as the army and the police. The Government had stated that the labour legislation was being reviewed, but the review in question had been going on for a number of years. No information had been provided as to whether this review process would include the principles of freedom of association in the public service. He urged the Government to complete the review as soon as possible, and to provide information on the specific aspects of freedom of association which needed to be guaranteed in law and practice.
He added that his trade union represented workers in the public service and that he had been dismayed to note that there had been no representative from Bangladesh at the recent Executive Committee meeting of Public Services International. The reason had been that the delegate in question had been unable to obtain an exit visa from Bangladesh. He, therefore, reminded the Government representative that the Convention guaranteed the right of affiliation to international organizations. This requirement of the Convention was clearly not being respected if trade union members were not permitted to participate in international meetings, which were of great importance to the workers' movement.
The Worker member of Pakistan, while appreciating the difficulties faced by the country and the efforts that were being made to promote democracy, drew the Government's attention to the need to apply the Convention in countries of all levels of development, since it contained principles which were the lifeblood of basic freedoms for all workers everywhere, including in EPZs. The country had undertaken the basic commitment to ratify the Convention and now needed to take the further step of implementing it fully. The Committee on Freedom of Association in a number of cases over the years had pointed to the gaps and contradictions between national law and practice and the principles of freedom of association. Although promises had been made that these shortcomings would be remedied and review bodies had been set up to examine the labour legislation, the same problems in relation to the application of the Convention continued to be listed by the Committee of Experts. Moreover, the Worker member of Japan had provided information which illustrated that the fundamental right of the affiliation of workers and employers to national and international organizations was not respected in practice. He, therefore, called upon the Government to take the necessary measures to give effect to its international obligations without delay.
A Worker member of Italy agreed that Bangladesh was a highly populated country, marked by economic difficulties and numerous natural catastrophes. However, the country had the possibility to go forward in development with respect to democracy. As made clear by the analyses and observations of the Committee of Experts, one of the pillars of democracy was the freedom of association. Out of 60 million workers in Bangladesh, 5 million were in the formal sector and, of these, 2 million were unionized but scarcely 20 per cent of these organizations at enterprise level were affiliated to registered, central national unions, authorized to bargain. A large part of the population did not have the right to organize and was thus excluded from collective bargaining: this section included public servants, tens of thousands of workers in export processing zones, all dependent workers in the informal sector and almost all workers in small and medium-sized enterprises. It was essential that the workers should be covered by a legislation which granted them the right to organize. This was essential for the stability and the democracy of the country. Bangladesh, which had ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), should work towards this end by exercising tripartism.
In reply, the Government representative thanked the Worker and Employer members for pointing to a number of issues which were a cause of common concern. It was not possible to hide such problems in a modern technological world in which information could be exchanged so easily. His country was, therefore, being very frank in facing up to certain discrepancies between its law and practice and the Convention and was showing the political will to address the related problems. On a more personal note, he informed the Committee that associations of high-level qualified personnel were gradually emerging as major actors in the country.
He assured the members of the Committee that he had taken note of the issues which had been raised, including the delay in the review procedure. Unfortunately, it was not possible to indicate a time-frame for the work of revising the national labour legislation. However, when he returned to his country he would convey the concerns which had been expressed to the appropriate authorities, which would undoubtedly have the effect of speeding up the process. Finally, with regard to the right to strike, he noted that democratization had progressed very greatly over the past ten years and that the workers in Bangladesh did exercise the right to strike.
The Employer members, while appreciating the goodwill expressed by the Government representative, feared that such goodwill merely served to mask a situation in which no progress was being made at all. The message that he should take back to his Government was that the Committee was looking for concrete steps and real action in the process of reviewing the labour legislation. Information needed to be provided on the real situation in relation to freedom of association in the country. If information were not provided to show that progress was being made, the Committee might have to adopt a different attitude to the case in the future.
The Committee noted the written information and the statement made by the Government representative and the discussion which took place in the Committee. It recalled with great concern that this case had been discussed by this Committee in 1995 and 1997. The Committee felt obliged to express its profound regret that serious discrepancies between national legislation and practice on the one hand, and the requirements of the Convention on the other hand, continued to exist. Deeply concerned by the total lack of progress regarding the application of this Convention ratified more than 25 years ago, the Committee firmly urged the Government to adopt measures on the following points: the prohibition on the right to organize of workers in export processing zones; the suspension of trade union activities in different sectors; the high requirements for registration of trade unions; the restrictions in respect of the holding of trade union office; the external supervision of the internal affairs of trade unions; the restrictions on the right of trade unions to formulate their programmes without interference on the part of the public authorities; and the restrictions on the right of association of public servants. The Committee strongly urged the Government to indicate in the very near future any substantial progress in the application of the Convention and to supply a detailed report to the Committee of Experts on the concrete measures taken to give full effect to the Convention in law and in practice. It encouraged the Government to avail itself of the technical assistance of the ILO.
The Committee once again expressed the firm hope that the National Labour Laws Reforms Commission would very soon conclude its work on revising the labour legislation and the Labour Code taking into account all the observations of the Committee of Experts and this Committee.
Cameroon (ratification: 1960). The Government has supplied the following information:
The Government reiterates the following explanations given last year to the Conference Committee: Article 6(2) of the Labour Code and Law No. 68/LF/19 of 18 November 1968 on trade unions and associations of civil servants are currently being modified along the lines of the observations of the Committee of Experts. The process of revising the texts began in 1990 and continues according to the circular on Government work. This involves texts concerning all sectors of national activity which should be in conformity with the universal principles contained in the various declarations and charters which Cameroon has signed. This work is hard and proceeds according to a schedule. The Committee can thus be reassured that the work is continuing and that it will finish by satisfying the specific concerns regarding freedom of association, in particular by coordinating national texts with the provisions of the Convention.
However, in practical terms, although the texts have not yet been modified, freedom of association does exist in practice as can be seen by the existence of the following unions: the National Union of Contractual Staff of the Administration (SYNCAAE); the National Union of Civil and Financial Service Public Servants (SYNAFCIF); the National Union of Pre-school and Primary School Teachers (SNEPMA); the Cameroon National Teachers' Organization (ONEC); the National Union of State Technical Services Staff (SYNAPTEC); the Cameroon Public Service (CPS); the National Teachers' Union of Cameroon (SYNEC); and the National Union of Higher Education (SYNES).
These unions conduct their activities in full independence and without interference from the Government; they are affiliated to international organizations as can been seen by the frequent trips abroad by their leaders to attend meetings organized by these organizations.
As the Committee can observe, freedom of association is alive and well in Cameroon. In the public sector bringing texts into line with Convention No. 87 will occur in due course; this should not be interpreted as a desire to gag the trade union movement in the public sector in Cameroon.
In keeping with the suggestions of the Committee, the Government will do its best to take the necessary measures in the near future.
In addition, a Government representative referred to the comments made by the Committee of Experts regarding his country. With respect to the requirement that civil servants' trade unions should obtain prior authorization before they could be established, he indicated that the relevant laws and regulations had been under revision since 1990. He recognized that the pace of the revision was slow, but pointed out that this delay was due to the fact that such a broad revision necessarily touched upon many different areas. He assured the Committee that all of the texts examined would be brought into conformity with the provisions of the Convention.
Urging that a practical and realistic approach should prevail over a formal, theoretical approach, he emphasized the importance of the practical application of the Convention. He referred in particular to the Government's written communication in which it was mentioned that a number of unions had been formed in recent years. He therefore considered that, in actual practice, there was trade union pluralism in Cameroon in both the public and private sectors. He also maintained that trade unions in the country were able to operate with complete independence. With regard to their affiliation to international organizations, he indicated that trade unions could become affiliated to organizations of their own choosing, and noted that the many trips abroad made by union representatives attested to this fact.
In conclusion, he asserted that above all, it was necessary to examine the actual practice in the area of freedom of association, as such an examination would permit the Committee to determine that there was no basis for criticizing Cameroon in this regard.
The Worker members thanked the Government representative for his presence and for the information provided. They recalled that the ILO supervisory machinery could only work if governments fulfilled their reporting obligations which presupposed a minimum of willingness on the part of governments to take into account the comments of the Committee of Experts and the Conference Committee. In this respect, they deplored that the Government had not sent a report. The written information provided by the Government showed that no new elements were provided by the Government. They recalled that the main difficulty concerned the 1968 legislation on civil servants' trade unions. While the Labour Code had been partially amended in 1992, several elements were severely criticized by the Committee of Experts with no tangible reaction on the part of the Government. Another problem was the refusal of the Government to recognize the National Union of Teachers of Higher Education (SYNES) since 1991. Concerning the requirement of prior approval before affiliating with an international federation, this requirement was to be deleted from the legislation; affiliation was to be unrestricted. Concerning the issue of the right to organize of the public service, they recalled that the Government had declared in the 1994 debate that the difficulties were only of legalities and formalities. While the Government had mentioned in the 1996 debate that draft legislation on the right to organize of civil servants had been prepared, the 1998 debate did not bring anything new. Since the Government declared that the revision of the legislation started nine years ago, the workers wanted to know what was the exact timetable concerning this issue. In addition, they pointed out that there had been repeated reports of interference from the Government in trade union affairs. These were obviously more than formalities.
In conclusion, they firstly requested the Government to explain why these delays were taking place. Secondly, they asked the Government whether it was ready to accept ILO technical assistance. Finally, they asked the Government representative when his Government would bring its legislation into full conformity with the provisions of the Convention and whether this issue was really a priority for the Government. In the light of what they had previously heard, they expressed their deep concern for the future.
The Employer members recalled that this case had been examined five times since 1981 as well as last year. Although the Conference Committee had urged the Government to take appropriate measures in order to bring its national legislation into conformity with the provisions of the Convention, the Government had failed even to submit a report. The presence in the Committee of the Government representative, the Minister of Labour, could not be seen as compensation for this failure.
The Employers Members stated that, according to national legislation, the legal existence of a trade union or occupational associations of public servants was subject to prior ministerial authorization. Moreover, trade unions, as well as occupational associations of public servants, were not allowed to affiliate to foreign occupational organizations without prior ministerial authorization. In addition, there had already been cases where the registration of trade unions of public servants, particularly in the teaching sector, had been refused. These instances constituted clear violations of the Convention. With reference to the statement by the Government representative in 1998 in the Conference Committee, in which it had undertaken to elaborate new legislation, the Employer members noted the present assertions by the Government representative that the relevant practice was in conformity with the principles set out in the Convention, which was evidenced by the fact that there were several trade unions acting in the teaching sector. The Employer members took the view that against this background it would appear easy to adapt national legislation to the reported practice. They emphasized, that allowing a discrepancy between law and practice gave rise to insecurity, as the law entitled the Government to interfere at any stage. In conclusion, the Employer members considered that the Government should be urged to take appropriate measures to bring its legislation into conformity with the provisions of the Convention. In addition, the Government should be reminded in the conclusions that it could call on ILO technical assistance in order to overcome any problems it might have with regard to the implementation of the Convention. Since there seemed to be no discernible prospect of an amendment of the legislation in the near future, the conclusions should reflect the Conference Committee's concern in this respect.
The Worker member of France noted that the fact that the Minister had mentioned the existence of trade unions in public service did not mean that these were not subject to prior authorization by the competent powers. The freedom to constitute trade unions, guaranteed by the Convention, should not continue to be interpreted restrictively by the Government. The speaker expressed his support for the questions that had been posed previously to the Government representative and asked him to specify the time-scale for the revision of laws and regulations regarding freedom of association, and also the date at which it might be hoped the texts would be in conformity with the provisions of the Convention. Finally, he wished to know whether the Government would rapidly accept the proposal of ILO technical assistance in preparing draft legislation in harmony with the Convention.
The Worker member of South Africa specified that the principal issue before the Committee was the violation of Article 2 of Convention No. 87. He noted that the 1968 legislation required any trade union or professional association of civil servants register with the Minister of Territorial Administration in order to obtain legal status. Trade unionists who failed to register their organization risked prosecution. This provision denied workers in the public sector proper representation in the light of International Monetary Fund and World Bank structural adjustment programmes being implemented in Cameroon.
The Committee had discussed the case of Cameroon in 1994 and again in 1996. As the Committee of Experts noted in its report, the Government has merely reiterated statements made in previous years without supplying information on any concrete progress made regarding application of the Convention.
As an example of the Government's violation of Article 2 of the Convention, he referred to the refusal to register the National Union of Teachers in Higher Education (SYNES) since 1991. For several years, the Government had indicated that a draft bill on trade unions and associations of civil servants had been prepared and would be submitted to the National Assembly. Eight years later, the bill had never reached the National Assembly.
In addition, he pointed out that trade unions were not allowed in export processing zones. He also indicated that the Government had been interfering in the internal affairs of the Cameroon Confederation of Trade Unions since 1993, when the Confederation opposed the implementation of austerity measures proposed by the International Monetary Fund and the World Bank. The Government had additionally sought to create divisiveness in the National Confederation and in the operation of rival national centres.
He cited section 19 of Decree No. 69 of 1969, requiring prior approval of the Government for trade unions and associations of civil servants to enter into international affiliations, a provision which violated Article 5 of the Convention. In conclusion, he called upon the Government to seek technical assistance in drafting amendments to its legislation in order to bring it into conformity with the provisions of the Convention, particularly Articles 2 and 5.
The Worker member from Zimbabwe noted that Cameroon was one of those member States that kept on defying compliance with the standards of the ILO, which they freely had joined, and this was unacceptable. He considered this case to be very serious as had been emphasized by the Committee of Experts as well as the Workers' spokesperson. It involved restrictions in the formation of trade unions in the public sector and outright refusals to register trade unions in the teaching sector. Under Decree No. 69/DE/7, section 19, trade unions or occupational associations of public servants were not allowed to join as affiliate to international organizations without ministerial approval in direct violation of Article 5 of Convention No. 87. He called upon the Committee to strongly urge the Government to take all necessary measures immediately to bring its legislation and practice into conformity with the provisions of Convention No. 87 which it freely had ratified in 1960. The speaker further urged the Government to take action without any further delay, noting that technical assistance could be a useful means to bring about changes more rapidly, provided there was commitment and political will to do so.
The Worker member of Benin supported the declaration of the Worker members. He noted that the Government representative had distinguished between civil servants' organizations and trade unions, and had understood that the Government considered trade unions within the public service to be mere associations. He requested the Government to give the number of regularly constituted trade unions still awaiting official recognition. In his view, the present situation was far from promoting the existence and development of the trade union movement.
The Government representative expressed his surprise at the systematic redundancy and the repetition of complaints that he considered to be either incorrect or exaggerated. He underscored that the comprehensive revision of the relevant legislative and regulatory texts involved the review of 250 texts by his Ministry alone, and that the work of the competent committee was under way. He pointed out that the pace of the work could not be dictated and that, in his view, priority should be placed upon the practical observance of the provisions of the Convention. It was incorrect to believe or affirm that public sector trade unions were simply associations when in actual fact they were true unions that could be freely constituted. The prior authorization of the competent authority was, therefore, given de facto. He then commented on the different cases of denial of union registration referred to by various speakers. With regards to SYNES, he considered that the fact that the union was functioning showed that no problem existed in this regard. In respect of the Confederation of Unions of Workers of Cameroon (CSTC), he stressed that that organization was facing serious internal problems that had even led to the establishment of two confederation offices following its annual conference in December 1997, a situation which, in his view, was totally unacceptable. It was in this context and in order not to interfere in the internal affairs of the CSTC that another union organization had been selected for participation in the ILO Conference.
Finally, with regard to the matter of technical assistance from the ILO, he noted the excellent collaboration that existed between his country and the ILO, giving examples of the joint programmes that had been developed. Nonetheless, as the issue was not one of drafting, but rather of the adoption of legislative and regulatory texts, he did not deem ILO technical assistance to be appropriate in this regard.
The Worker members regretted the fact that there were no prospects of progress in the near future. They felt that the Government representative had not shown any spirit of cooperation and did not come with any concrete answers. They recalled that this Committee was working on the basis of the comments provided by the Committee of Experts who were an independent and a highly respected body. They pointed out that it was not a constructive approach for the Government to imply that this Committee was dealing with the situation in an erroneous way. Therefore, they requested a special paragraph for this case.
The Employer members stated that this case had been examined several times, and as the intervention by the Government representative did not demonstrate any political will to change the national legislation, the conclusions should be phrased in the same terms as in 1998. The Committee's concerns should be reflected in a special paragraph.
The Committee noted the written information and the oral detailed statement made by the Minister for Employment and Labour and the discussion which took place. It recalled that the case had been discussed by the Committee in several sessions in the past. It also recalled that the Committee of Experts had formulated comments for several years regarding the non-application of Articles 2 and 5 of the Convention in law and practice. It stressed the need to amend Act No. 68/LF/19 of 1968 and the corresponding Decree of 1969 subjecting the legal existence of organizations of public servants and the possibility of joining a foreign occupational organization to previous authorization of the administrative authorities. It also stressed the need to repeal section 6(2) of the Labour Code which permitted the prosecution of persons forming a trade union which had not yet been registered and who acted as if the trade union had been registered. The Committee deeply regretted that, despite previous discussions on this case, no progress had been made. The Committee strongly urged the Government to take effective measures in order to remove the obstacles to freedom of association which resulted from the requirement of previous authorization to set up a trade union organization and to guarantee that all workers, including civil servants and contract workers, had the right to form and join organizations of their own choosing. The Committee expressed serious concern that the Government had not supplied a detailed report to the Committee of Experts for several years. The Committee once again strongly urged the Government to supply a detailed report to the Committee of Experts at its next meeting on the measures effectively taken to bring the legislation and practice into conformity with the Convention. The Committee decided that its conclusions would figure in a special paragraph of its report.
Canada (ratification: 1972). A Government representative referring to an International Confederation of Free Trade Union's (ICFTU) document, noted at the outset that the ICFTU recognized in this publication that Canadian workers in both the public and private sectors had freedom of association to enable them to form and join trade unions. In addition, it was noted that Canadian legislation prohibited anti-union discrimination and required employers to reinstate workers fired for union activities, including strikes. He observed that other quotes from the document specified that workers in both the public (except for some police) and the private sectors had the right to organize and bargain collectively in law, although not always in practice and that most workers had the right to strike.
The speaker recalled that Canada recognized the key importance of observing ILO principles on the right to organize and collective bargaining and protecting workers' rights. However, he stressed that governments, including the federal, provincial and territorial governments of Canada, were elected to make decisions and exercise their responsibilities for the welfare of their populations as a whole. Governments had both a mandate and a duty in democratic societies to reconcile legitimate, but divergent, interests and conflicting demands for the greater public good. Referring to the specifics of the Committee of Experts' observation, he recalled that the Canadian Constitution recognized that the provinces had full control over labour relations within their jurisdiction. The information, therefore, provided to the Committee and concerning provincial laws and practices, had been submitted by the provincial governments concerned.
Regarding the experts' observation on the procedure for the designation of "essential employees" under Newfoundland's Public Service Collective Bargaining Act, the speaker indicated that the public consultation process to which the Committee of Experts had referred had been completed. The joint labour and management Working Group of the Economic Advisory Council had submitted a detailed report with recommendations to the government concerned. A copy of the report would be provided to the Committee. The Working Group's recommendations on the issue of designation of essential employees were generally supportive of the provisions in the Public Service Collective Bargaining Act pertaining to essential employees. In addition, an interdepartmental working group of the Newfoundland Government had completed its analysis of the recommendations and is now awaiting final directions. The speaker also specified that in the early 1990's there was some activity at the provincial Labour Relations Board related to establishing the process to designate essential employees. In all instances, labour and management voluntarily came before the Labour Relations Board with a joint agreement on employees to be designated as essential. It appeared that this represented a full endorsement by both labour and management for the existing provisions in the Act. The Newfoundland Government, therefore, did not anticipate having to make further amendments to legislation governing essential employees at this time.
Turning to the right to strike for hospital workers under the Province of Alberta's Public Service Employee Relations Act, he informed the Committee that in Alberta, at approved hospitals as defined by the Minister of Health, employees did not have the right to strike, nor employers the right to lockout. Approved hospitals included acute care facilities, but did not include community health services, mental hospitals and some long-term care facilities. At these other facilities and services, employees did have the right to strike and the employer had the right to lockout. Under the relevant Alberta legislation, the right, or not, to strike/lockout depended more upon the nature of the organization providing the service rather than the type of work which employees performed within the organization. In fact the entire health care system in the province was regionalized about five years ago and although the government currently had no plan to amend its legislation, it continued to monitor how the labour relations framework was working, as service delivery evolved and became more integrated with a regionally coordinated system.
Regarding the Committee of Experts' observation on restrictions on the right to organize in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick the speaker indicated that, as regards Alberta, although primary agriculture farm workers were excluded from coverage under Alberta's labour relations legislation, there were no provisions in the labour legislation which would specifically prohibit any of these workers from voluntary negotiations with employers for whom they might perform services. In this regard, he gave the example of voluntary negotiations held outside the parameters of Alberta labour legislation between the province and the Alberta Medical Association. This group negotiated provincial fee schedules for its member physicians. Also, medical residents who were also excluded from the scope of the collective bargaining general scheme had negotiated terms of employment with the province's teaching hospitals.
As regards Ontario, the speaker stated that there were legitimate reasons for the exclusion of certain employees from statutory bargaining rights under Ontario's Labour Relations Act, but that the excluded workers continued to be free to form voluntary associations or unions outside the statutory collective bargaining regime. The unique characteristics of, and the nature of employment in, the agricultural sector raised serious questions as to the suitability and propriety of the regime of collective bargaining contemplated by the Labour Relations Act, in particular the dispute resolution mechanisms upon which collective bargaining depended, namely the right to strike and lockout, and compulsory arbitration.
As regards New Brunswick's labour relations legislation that a bargaining unit of agricultural workers comprised five or more employees, he stressed that this condition was necessary in order to free small agricultural, family farms from inappropriate legislative requirements.
The speaker expressed his Government's satisfaction at the positive comments made by the Committee of Experts in paragraph 3 of its observation, as regards the adoption of the federal legislation Bill C-19, an Act to amend the Canada Labour Code, and in particular, its prohibition of the use of replacement workers to undermine a union's representational capacity. Finally, he stressed his Government's acknowledgement and will to fully cooperate with the ILO supervisory system with respect to recently arisen cases currently before the Committee on Freedom of Association.
The Worker members expressed their gratitude to the Government for the information provided. They recalled that Canada had ratified the Convention in 1972 and that the Committee of Experts had reported several problems in the application of Articles 2 and 3 of the Convention in a number of provinces. In particular, the Committee had first and foremost requested additional information on the situation in the Province of Newfoundland. The Newfoundland Government had informed the Committee of Experts that it had introduced an effective procedure for the designation of "essential workers" and that the joint labour-employer working group had submitted a report proposing an amendment to the legislation on freedom of association. The Worker members had requested the Government to inform the Committee of Experts on the latest developments in this regard.
The Committee of Experts had also requested additional information from the Government of Alberta in respect of essential services in the health care sector. The Worker members expressed their support for the position clearly established by the Committee of Experts regarding the right to strike and regarding the few situations where this right could be restricted. The Worker members did not intend to discuss the modalities of the right to strike in the context of this case. Furthermore, they pointed out that trade union problems such as those experienced in the field would shortly be raised by the Worker member of Canada. Nevertheless, the Worker members had requested the Government's response to the issues raised by the Committee of Experts and the Government's assurances that the application of its legislation would be in conformity with Article 3 of the Convention, which provides that trade union organizations have the right to formulate their programmes of action. Moreover, the Worker members emphasized that point 3 of the Committee of Experts' report referred to fairly serious violations of Articles 2 and 3 of the Convention in the Provinces of Alberta, New Brunswick and Ontario. In particular, the Worker members criticized the recent laws passed in the Province of Ontario, which blatantly violated the Convention.
The Committee on Freedom of Association had recently received several complaints and it had formulated conclusions in Case No. 1900 regarding the denial of trade union rights to workers in the agricultural and horticultural sectors, kitchen workers, architects, lawyers, doctors and other categories of workers in the Province of Ontario. According to information received, several of these categories of workers had in fact established organizations and had concluded collective agreements. In Case No. 1900, the Committee on Freedom of Association had also noted that the new Act had also had negative repercussions on the right to organize in enterprises which had been bought out or taken over by the construction industry. Moreover, the Committee on Freedom of Association was currently examining Cases Nos. 1951 and 1975 concerning the prohibition on freedom of association for certain categories of workers, such as heads and deputy heads of schools and workers participating in social welfare programmes in the Province of Ontario. In this regard, the Worker members requested the members of the Committee on Freedom of Association to scrutinize the text of Case No. 1900, relative to the denial of trade unions rights to workers in the agricultural and horticultural sectors, to kitchen workers and other categories of workers. The 1995 Act had amended labour relations legislation in Ontario and now excluded categories of workers from essential legislation guaranteeing the effective exercise of the right to organize. The Worker members considered that this constituted an explicit and deliberate denial of a fundamental right and principle. They quoted in this regard the statement made by the Government of Ontario in paragraph 181 of Case No. 1900, referred to by the Committee of Experts: "The Committee notes that the Government considers that a statutory labour relations regime and collective bargaining dispute resolutions mechanisms are inappropriate for agricultural and non-industrial workplaces because of the low profit margins and unstructured, highly personal working relations". The Worker members considered that if this line of reasoning were to be followed, the majority of workers in the world especially in developing countries would be deprived of trade union rights. Moreover, the Government of Ontario had pursued a deliberate policy. Act No. 22, which took effect on 18 December 1998, pursued a specific and explicit objective mentioned as such in the text, namely, the Act denied workers participating in social assistance programmes the right to join trade union organizations. Another Act, dated 1 December 1997, excluded heads and deputy heads of schools from the scope of labour relations legislation and also significantly modified their collective rights. The Government of Ontario and the federal Government had also argued that these categories of workers could enjoy freedom of association under the common law system. However, under the Canadian legal system, freedom of association was ineffective beyond the framework of fundamental labour relations legislation.
In conclusion, the Worker members requested that the conclusions take account of the fact that the fundamental rights and principles were being jeopardized in the Provinces of Alberta, New Brunswick and Ontario. Moreover, they insisted on the importance of Articles 2 and 3 of Convention No. 87, namely, that all workers, without distinction whatsoever, should have the right to establish and join trade union organizations and that these organizations should have the right to formulate their programmes of activity. Finally, the Worker members emphasized that the pertinent legislation should be amended without delay to enable Canada to respect its international obligations with regard to the rights and fundamental principles recognized in Articles 2 and 3 of the core Convention.
The Employer members noted the information provided by the Government representative which supplemented the facts illustrated in the observation by the Committee of Experts. He further noted that a part of the Committee of Experts' comments had highlighted recent legislative developments in the country. The observation, however, contained some aspects with which the Employer members could not agree. He said that the right for workers and employers to establish organizations of their own choosing without previous authorization, including the right to formulate their programmes, as enshrined in Articles 2 and 3 of the Convention, constituted a good point of departure for the comments that had been made by the Committee of Experts. With reference to the situation in Newfoundland, he noted the statement by the Government representative to the effect that the social partners had agreed on the necessary legislative reform process, which had shown that tripartite consultations on the subject had taken place. In this respect, he supported the Committee of Experts' wish to be kept informed of developments in this regard. As regards the Province of Alberta, the situation was different, and the restrictions concerning the right to strike for hospital workers had been imposed by law. However, the strike ban was not applicable to all hospitals but only to some. The speaker referred to the Committee of Experts' point of view on the right to strike, which was considered to be a right substantially deriving from the right to organize and that, therefore, any restriction thereof should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term as defined by the Committee of Experts. In contrast, the Employer members were of the opinion that the State had the right to define the term "essential services". They emphasized that the concept "essential services" could not be understood by a mere reference to the text of Convention No. 87. Although the Committee of Experts might wish to discuss the question whether or not work by kitchen staff, porters and gardeners constituted essential services in hospitals, such a discussion could not be part of a discussion regarding the application of the Convention. With respect to the rather positive observations regarding the adoption of Bill C-19, an Act to amend the Canada Labour Code (Part 1), which according to the experts had brought the legislation into greater conformity with the principle of freedom of association, he thought that in this respect the provisions concerning the right to strike and the right to lock-out had no relevance regarding the implementation of the principle of freedom of association. As regards the right to organize in agriculture and horticulture, they recognized certain lacunae in the law in this respect. However, the question whether or not the right to strike was restricted in this sector was neither a subject related to the Convention nor an issue raised by the Committee in their observation. In conclusion, the speaker recalled that the Employer members had always had a different view than the Worker members regarding the right to strike and that the Employer members agreed to disagree on this point. For this reason, he refrained from once again reiterating the well-known Employer members' argument on the subject. However, the arguments underlying the Employer members' view on the subject would be found in paragraphs 115 to 134 of the 1994 Conference Committee's report as well as explanations regarding the mandate of the Committee of Experts which has existed since 1926.
The Worker member of Canada stated that violations of the Convention in Canada were a persistent reality. To support this statement, he recalled the large number of cases concerning Canada which were brought before the Committee on Freedom of Association (CFA) and in which the CFA adopted conclusions calling on the Government to take measures to comply with the Convention. He regretted that very rarely, if ever, were the conclusions complied with. He recalled that, in 1985, a study and information mission was sent to Canada in view of the numerous cases of violations of basic principles of freedom of association. Ten years later, in 1995, the Government rejected the recommendation of the CFA that it make use of the assistance of the Office, in particular through an advisory mission. Shortly after, Bill No. 7 was introduced in which the Government of Ontario excluded agricultural and domestic workers and certain specified professionals from access to collective bargaining and the right to strike; terminated the existing organizing rights of these workers; nullified their current collective agreements; removed the statutory measures for protection against anti-union discrimination and interference on the part of the employer; removed successor rights and related employers' rights from Crown employees; and eliminated successor employer protection from workers in the building services sector. Bill No. 7 gave rise to an additional case before the CFA (Case No. 1900). In its recommendation on this case, the CFA strongly recommended that necessary measures be taken to ensure that these workers enjoyed the protection necessary to establish and join organizations of their own choosing; to ensure that the right to strike was not denied; to guarantee access for these workers to machinery and procedures which facilitated collective bargaining; to ensure that these workers enjoyed effective protection from anti-union discrimination and employer interference; to ensure that these organizations were re-certified; to revalidate the collective agreements pertaining to agricultural workers and professional employees; to ensure that the right to organize and collective bargaining rights were adequately protected in building services; and to draw the attention of the Committee of Experts to the legislative aspects of this case. The speaker stated that these recommendations had not yet been complied with. On the contrary, in the 309th Report of the CFA (March 1998) the Government indicated that it did not intend to amend the legislation to remove the exclusion of agricultural workers from any such statutory labour relations scheme. The speaker considered that this position was particularly questionable considering that agricultural workers and domestic workers were among the most vulnerable workers and that this type of work was often done by immigrant workers who worked in an environment where decent working conditions did not exist. Underlining the Government's statement that Bill No. 7 had established the appropriate balance of power between unions and employers and had facilitated productive collective bargaining, which the Government views as an important component of its strategy to strengthen the economy and create jobs, the speaker considered that to take away such fundamental rights such as the right to join a union, the right to strike and the right to negotiate from groups of workers was a strange way to establish an appropriate balance of power. The same was true for the Alberta case, where the right to strike was also denied to a group of workers who were not in any essential services in hospitals, such as gardeners.
The speaker noted the oral information provided by the Government as regards the case of Newfoundland and looked forward to examining the report to which the Government referred.
The speaker went on and recalled that, since Case No. 1990, six new complaints had been filed before the CFA. The first concerned Manitoban teachers to whom the right to strike was denied and for whom certain matters were excluded from collective bargaining or from the jurisdiction of interest arbitrators (Case No. 1928 (Manitoba), 310th Report).
The second case dealt with the Government interference in arbitration and labour tribunals (Case No. 1943 (Ontario), 310th and 311th Reports).
The third case in which ILO assistance was recommended concerned the taking away of the principals' and vice-principals' right to organize, to strike and to negotiate; the interference in the collective bargaining process and the elimination of other protections (Case No. 1951 (Ontario)).
The fourth case dealt with a legislation entitled An Act to prevent unionization. This law ensured that people who were on social assistance and forced to work for the State so as to receive their social assistance would not have the right to join a union to be able to negotiate working conditions that used to exist for this type of work. For the speaker, in Canada, "workfare" was a new name introduced so as not to use "forced labour" (Case No. 1975 (Ontario)).
The fifth case concerned a back-to-work legislation introduced to end a strike in the postal service. The law was introduced right at the beginning of the strike to ensure that the right to strike provided by law was not going to be available to the workers. In this case the right to strike was taken away so that workers would have no collective strength to negotiate, the main reason to join a union, and so that the Government could impose to the arbitrator appointed under this legislation, some of the provisions that supported the employers' position. The speaker questioned whether, in this case, the federal Government shared the view of the Ontario Government that taking away the rights of workers recognized by law was an appropriate way to establish a balance of power between unions and employers (Case No. 1985 (federal)).
Lastly, the sixth case also dealt with a back-to-work legislation introduced against the power workers (Case No. 1999 (Saskatchewan)). In addition to these cases, the speaker informed the Committee that, recently, laws taking away the right to strike of workers in Saskatchewan, Newfoundland and at the federal level had been introduced.
The speaker concluded that he supported the position taken by the Worker members. He insisted that the right to strike is part of the collective strength workers are looking for when joining a union. Otherwise, he wondered what would be the incentive to form unions.
The Worker member of the United States expressed his support for comments made by the Worker members and the Worker member of Canada. He indicated that he was compelled to comment on the Canadian case, citing the close trade and investment relationship between the United States and Canada. He pointed out that many of the structures of the labour law regimes of the two countries were very similar, including the system of union certification based on majority worker authorization in defined bargaining units and the system of collective bargaining in the private sector. Additionally, many of the North American trade union structures were based on trade, craft and industry and were known as internationals, with affiliates from both Canada and the United States. Despite these similarities, however, the United States labour movement had also noted critical differences between the two systems. For example, the Canadian provinces had included more expedited bargaining unit representative certification processes, as well as legislation limiting or prohibiting permanent striker replacement. In his view, such differences partly explained the higher degree of worker organization in Canada as opposed to the United States. Therefore, he expressed deep concern with developments in Canadian labour law and practice limiting freedom of association rights for Canadian workers and increasing the possibility of employer interference in the exercise of the rights of workers to organize, strike and collectively bargain. Referring to the Committee of Experts' report as well as to the ICFTU's Annual survey of labour rights, he noted that certain job classifications were being excluded from protection under the labour laws in various Canadian provinces. In Ontario, the labour legislation excluded agricultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors from legal guarantees securing workers' rights to organize and bargain collectively. Other categories of workers excluded were contract service workers, such as cleaning crews, food service workers and security guards, in the event of the sale of a business or a change of contractor. Additionally, amendments to the Ontario legislation prohibited workers participating in workfare programmes from forming unions, collectively bargaining or striking, as a condition for receiving welfare benefits. He indicated that this issue was of particular concern to workers in the United States, in light of the welfare reforms in his country. Recent amendments in Ontario labour laws also removed critical anti-scabbing provisions, which allowed employers to permanently replace striking workers. Concerning Alberta's labour legislation, he considered that the report of the Committee of Experts was self-explanatory in addressing Alberta's unreasonable definition of essential services. He referred to recent Canadian jurisprudence which, in finding that Canadian rural letter carriers were independent contractors and not employees, denied those letter carriers the legal guarantees of organizing and collective bargaining. In conclusion, he fully supported the Committee of Experts' comments and urged the Government to take the necessary measures to amend its legislation to bring it into full conformity with the Convention. He underscored that such measures would affect the welfare of all workers in North America.
The Worker member of South Africa initially emphasized the importance of the Convention as a full implementation of this Convention was a key measure of democracy and social justice. Expressing his support for the statements made by the Worker members, he noted with deep concern the fact that agricultural and domestic workers, who were some of the most vulnerable groups of workers, were excluded from the right to exercise their freedom of association. He added that Canadian agricultural workers included a large number of immigrants, who were in particular need of protection. He further noted that the denial of the right to strike of certain employees within public hospitals in Alberta stood in complete contrast with the long-standing practice of the Committee on Freedom of Association. He finally noted with concern the fact that teachers in Manitoba were also denied the right to strike. He strongly urged the federal Government of Canada to ensure that the pertinent domestic legislation be amended to conform with Convention No. 87.
The Worker member of Germany supported the statements made by the Worker members, stating that this case was of fundamental importance with respect to the principles enshrined in the Convention. He recalled that the Committee on Freedom of Association had examined a number of cases in this regard and that it had always expressed great concern regarding restrictions placed on the guarantees secured by the Convention. Commenting on the restrictions imposed on the right to strike by legislation in the Province of Alberta, he pointed out that the comments of the Committee of Experts made clear that no restrictions should be placed on the right to strike. In his view, the Government and the employers should therefore be asked to explain why categories of workers such as kitchen staff and gardeners in the health sector had been deprived of this right. He urged the Government to accept the comments of the Committee of Experts and take immediate steps to bring its legislation into conformity with the provisions of the Convention. Recalling the Employer members' comments on the right to strike in the general discussion and the references thereto today, he noted that many of these arguments were of a historical nature and indicated that the Committee of Experts had adopted an objective and systematic interpretation. Today, the Worker members were celebrating the 50th anniversary of Convention No. 98, just as 1998 had marked the 50th anniversary of Convention No. 87. The case before the Committee, which involved issues concerning freedom of association, collective bargaining and the right to strike, clearly demonstrated that these issues were relevant topics even for industrialized countries. He expressed his hope that Canada would set a positive example for other countries and immediately implement the principles enshrined in the Convention, otherwise the impression could arise that only developing countries were under special pressure to implement ILO Conventions.
The Government member of Australia noted that while certain legislation to which the Committee of Experts had referred appeared not to apply to some categories of workers, the Canadian Government had made the important point that those categories of workers remained free to form voluntary associations and to bargain collectively outside the formal statutory regime. In the Australian Government's view the Committee of Experts' report on the application of Convention No. 87 in Canada did not contain sufficient information that would enable all members of the Conference Committee to give consideration to the issues raised. A much more comprehensive exposition of the issues involved would be required for this Committee to properly consider the matter. He noted that the Committee of Experts' report necessarily contained no considered discussion of any information submitted to it by the Canadian Government and that the Committee of Experts had asked the Canadian Government to provide further information on some issues. In this context, rather than this Committee further examining this matter at this stage, he considered that it would be helpful if the Canadian Government be given the opportunity to present additional information to the Committee of Experts.
The Worker member of Finland, speaking on behalf of the Worker members of the Nordic countries, supported the statements made by the Worker members and the Worker member of Canada. He thanked the Government representative for the information provided. Noting that Canada had ratified the Convention No. 87 but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), he expressed interest in the Government representative's statement during the general discussion to the effect that the Government firmly intended to continue the dialogue with the ILO concerning the possible ratification of Convention No. 98. He regretted, however, that such a developed and industrialized country had not been able to comply with the provisions of the Convention, particularly concerning the right to strike and the right to organize and negotiate collectively. He asserted that the violations of the Convention had become a persistent reality in Canada. Noting that some minor legislative amendments had been made in order to bring the Canada Labour Code into closer conformity with the principles of freedom of association, he expressed the hope that the Government would be able to report further positive developments in the near future. The Employer members' persistent questioning of the interpretation of the ILO supervisory bodies concerning the right to strike was raised with concern, as well as the fact that the Government also did not seem to accept such interpretation. He emphasized that the right to strike is a universal right tacitly inferred from the ILO Constitution and from the interpretation of Conventions Nos. 87 and 98 by the Committee of Experts and the Committee on Freedom of Association. The right to strike was recognized not only as a legitimate, but indeed as an essential means available to workers to defend their occupational interests. He was of the view that the interpretations of the ILO supervisory bodies were validly founded upon Articles 3, 8 and 10 of the Convention. He pointed out that, pursuant to Article 8 of the Convention, in exercising the rights under the Convention, the law of the land was to be respected; however, such laws should not impair the guarantees provided for in the Convention. With particular reference to the right to strike of the public sector in the Province of Alberta, he recalled that while a general ban on strikes was in contradiction with the Convention, certain restrictions were permitted including the case of essential services in the strict sense of the term, and public servants exercising authority in the name of the State. In conclusion, he asserted that in this context the law and practice in the Canadian Province of Alberta had not met the requirements set out in the Convention, as interpreted by the supervisory bodies, and called on the Government to take responsibility for what was taking place in the various provinces.
The Worker member of Zimbabwe recalled that the principle of the right to strike was derived from Article 10 of the Convention, which provides that worker organizations may act with a view to furthering and defending the interests of their members. This definition was of fundamental importance as it defined the purpose of such organizations. Furthermore, contrary to what the Employer members seem to believe, essential service workers were defined in the strict sense of the word in the Digest of decisions and principles of the Committee on Freedom of Association. Therefore, there could be no doubt that the kitchen workers, porters and gardeners, referred to in the Alberta Labour Code amendment, did not fall into this category of workers, although they worked in hospitals. Furthermore, the amendment of the New Brunswick Labour Code, which excluded certain categories of workers from protection, constituted a direct violation of the Convention. He, therefore, strongly urged the Government of Canada to take the necessary measures to amend this legislation in order to bring it into full conformity with the principle of freedom of association as observed by the Committee of Experts.
The Worker member of Greece declared that he was stunned by the length of the discussion which had gone on for two hours and which concerned the application of a fundamental Convention by an outstanding country such as Canada. With reference to the observations made by the Employer members, he noted that although States were free to choose the measures taken to implement the Convention, they were still under obligation to ensure compliance with the Convention. Furthermore, as regards the opposition between the right to strike and lockout he noted that in his country lockout had been prohibited since 1982 without any complaints from the employers. According to the speaker, equality between workers and employers could not be measured by the level of recognition of the right to strike or to lockout. One could only talk of equality once workers had acquired the same level of power as employers. Finally, he stressed that Canada should take every measure to ensure that its legislation be brought into conformity with the Convention in order, at the very least, to avoid the embarrassment of the present situation as well as the bad publicity arising from it.
The Government member of South Africa stated that his Government noted with concern the comments by the Committee of Experts in the case of Canada in relation to the Convention. Some five years ago his Government had tackled and resolved the very challenges that the Canadian Government had committed to tackle almost 27 years ago. The South African Government had also recognized that domestic and agricultural workers represented the most vulnerable groups of workers in its society and certainly this would also be true in the case of Canada. His Government urged the Canadian Government to bring its legislation and practice into line with this Convention as soon as possible.
The Government representative thanked all the participants in the debate for their contributions. He assured that each opinion expressed as well as the conclusions of the Committee would be transmitted to the relevant authorities in his country.
The Employer members stated that although they had not shared all the views expressed in discussion regarding freedom of association and collective bargaining, there was a general consensus on the subject and diverging opinions had been expressed only with respect to certain specific questions. Although a fundamental discussion on the right to strike should not be reopened, they noted that the Digest of decisions and principles of the Committee on Freedom of Association (CFA), which had been cited on various occasions, was merely a compilation of comments and observations made by the CFA. In this respect, they considered that the quotation of the Digest had become a self-generating element in discussions on the subject. With reference to the statement by a Worker member of Germany, according to which restrictions on the right to strike had constituted a restriction of a basic right, they were of the opinion that the term "basic right" needed to be defined first. In principle, the Employer members were not against the recognition of the right to take industrial action which included the right to strike and the right to lock-out. However, this right did not derive from the Convention. Recognizing the right to undertake industrial action, the question concerned the legal basis for the right to strike. For further details, reflecting the Employers' general position on the subject, they referred to the 1994 report of the Conference Committee (paragraphs 115 to 134). In conclusion, they emphasized that the Convention was not the legal basis for the right to strike. However, with a view to the divergencies between the Employer and Worker members' opinions on the subject, the Employer members emphasized that existing agreements on the Employer and Worker members' positions regarding most elements of freedom of association should also be pointed out, since the ILO and its member States attached great importance to freedom of association. Moreover, the Government should provide additional information with regard to measures taken in order to bring the legislation into conformity with the provisions of the Convention.
With reference to the observations by the Employer members, the Worker members recalled that all were aware of the differences of opinion between the two groups as regards the right to strike and, in particular, whether it should be included in the scope of freedom of association. Although the Worker members regretted that there had been no progress in this respect this year, they expressed the hope that the Employer members would continue to analyse the situation prevailing in different countries and, in particular, the interpretation of freedom of association given by these countries and what it represented and that the dialogue and exchange of views in this respect should continue within the Committee.
The Committee noted the statement made by the Government representative and the discussion which took place thereafter. The Committee noted with interest the information relating to the establishment of effective procedures for defining "essential workers" undertaken by the Newfoundland Government through tripartite consultations. While noting with interest recent legislative developments relating to the adoption of Bill C-19 amending the Canada Labour Code, the Committee observed that for a number of years the Committee of Experts and the Committee on Freedom of Association had been making comments on a number of issues relating to the application of the Convention. These issues included the excessive restrictions on the right of workers' organizations to formulate their programmes without undue interference from the public authorities resulting from federal and/or provincial legislation. The Committee further noted that labour relations legislation in some Provinces (Alberta, New Brunswick, Ontario) excluded a number of workers from their coverage, including workers in agriculture and horticulture or domestic workers, thereby denying them the protection provided with regard to the right to organize and to negotiate collectively. The present Committee, like the Committee of Experts, stressed that the guarantees provided under the Convention applied to all workers without distinction whatsoever, and that all workers should enjoy the right to establish and join organizations of their own choosing to further and defend their occupational interests. The Committee further stressed that workers' organizations should enjoy the right to formulate their programmes without interference from the public authorities. The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to bring its legislation and practice into full conformity with the Convention.
Ethiopia (ratification: 1963). A Government representative expressed his surprise to have been called to address this Committee this year since the cases on which the Committee of Experts had made comments were considered by this Committee at the 86th Session of the International Labour Conference. At that time, the Ethiopian delegation appeared before this Committee and provided a detailed explanation on concerns raised with regard to the application of Convention No. 87 by Ethiopia. At the conclusion of the discussion, the Conference Committee made recommendations and asked the Ethiopian Government to supply a detailed report for the subsequent session of the Committee of Experts. Accordingly, detailed reports were furnished to the Committee of Experts and the Committee on Freedom of Association with the necessary documents, including a translation of a supporting court decision. In these reports, the Government explained the concrete measures taken to ensure full conformity with Convention No. 87 both in law and practice. In this regard, the active and ongoing consultation with the social partners with a view to amending the Labour Proclamation was one concrete example of the efforts undertaken by the Government to continue to fully comply with the Convention. This exercise bore witness to the fact that the comments made by the Committee of Experts and the discussion held in this Committee in 1998 had been taken account of. While the Government highly appreciated the constructive comments and suggestions which would contribute to the ongoing tripartite dialogue in the country, it considered that the repetition of these comments this year was unwarranted and that this Committee should have waited for the conclusion of the discussion and the conclusions of the Committee on Freedom of Association. As such, the Ethiopian delegation did not wish to burden the Committee by repeating the views of the Government already presented last year on the same set of issues and only wished to highlight some of these issues. With regard to the former members of the Executive Committee of the Ethiopian Teachers' Association, the Federal High Court in Addis Ababa had ruled that "... as the name itself states, the Ethiopian Teachers' Association is an association established by teachers. It, therefore, logically follows that it is only members of the association who as per the rules of the ETA could elect their representatives. Hence, the Court has no jurisdiction to determine which of the disputing Executive Committees is the legal representative of the ETA. The matter has to be left to the ETA's General Assembly decision ...". Therefore, the Court in its decision did not give legitimacy to any of the Executive Committees including the one held by Dr. Taye Woldesmiate. Rather, it empowered the ETA's General Assembly to rule on the legitimacy of the Executive Committee. On the basis of this decision, the ETA General Assembly was called on 18 October 1995 and freely elected the new Executive Committee members. The Court also passed decisions on the management of the property and the assets of the ETA. There was no unilateral action whatsoever which the Ethiopian Government has taken in this regard. Detailed responses with the English translation, of the High Court decision has been provided to the Committee on Freedom of Association. With regard to Dr. Taye Woldesmiate, a former Executive Committee member of the ETA, the Government representative recalled that the Ethiopian Government had repeatedly stated the reasons for his arrest and trial. Currently, the cases of Dr. Woldesmiate and his accomplices were before the second division of the Federal High Court. Dr. Taye Woldesmiate had been held humanely with full respect for his person. Consequently, the allegations of mistreatment were totally unfounded. He had been put on trial for reasons totally unrelated to his activities as a former member of the Executive Committee of the ETA. The charges brought against him related exclusively to his role with the other defendants in an attempted armed uprising to forcibly overthrow the Ethiopian Government. With regard to the recommendations for the amendment of the Labour Proclamation, the Government representative recalled that the Ministry had been holding consultations with the social partners with a view to drawing up concrete proposals to submit to the Government in due course. Any amendment or promulgation of a new law would be carried out in accordance with the priorities and work programme of the legislature. Finally, the Government representative reiterated that the Government would continue to extend its full cooperation to the ILO's supervisory bodies and that the ratifications of the three fundamental ILO Conventions by the Ethiopian Government demonstrated its strong commitment to the fundamental principles of the ILO.
The Worker members recalled that this case had been discussed last year. However, during the past 12 months there had been no respite in the Ethiopian Government's repression of any trade union which was not under its control or that of its supporters. The Worker members provided the example of the national trade union centre, the Confederation of Ethiopian Trade Unions (CETU) which had been deregistered in 1994 by the administrative authorities, in line with provisions of the 1993 labour law, following the Confederation's criticism of the harsh structural adjustment policy implemented in the country. The authorities reregistered the Confederation in 1997, under a new leadership which was acceptable to the Government. All but one of the nine federations affiliated to the CETU had been brought under government control. One remaining federation, the Industrial Federation of Banking and Insurance Trade Unions, remained free from government interference in 1998, but reported that the authorities constantly interfered in the affairs of its member unions. At the Ethiopian Insurance Corporation, an unconstitutional branch meeting was organized with only a minority of members present, and appointed new union officials. Similar events took place at the Construction and Business Bank. In September 1998, during the first round of redundancies, the president of the Banking and Insurance Federation was forced to take voluntary retirement from his position at the Ethiopian Insurance Corporation -- despite the legislative provisions which provide that trade union leaders should be the last to be made redundant. This also meant that he was no longer able to continue as president of the union. Sixty-nine other trade union leaders and members also lost their jobs at the Insurance Corporation.
For the Worker members, the most severe harassment continued to be directed at the unaffiliated Ethiopian Teachers' Association (ETA). They recalled that in December 1994, after a legal challenge from a government backed breakaway faction of the ETA, a court had ruled that the ETA leadership of Dr. Taye Woldesmiate was indeed the legitimate leadership. The breakaway group appealed and the court froze the ETA's bank account. It appeared that over time all their offices had been seized by the security forces and handed over to the breakaway group. ETA harassment only began after the association started to question aspects of the Government's educational policy and to bargain collectively on teachers' pay and conditions of work. In 1997, the Assistant General Secretary of the ETA, Mr. Assefa Maru, was killed by security forces. No independent investigation took place into the murder. Shortly after the murder of Mr. Maru, the ETA General Secretary, Mr. Gemoraw Kassa, went into exile. On 13 August 1998, the ETA head office was occupied and sealed by 30 people, comprising police, security forces and members of the breakaway group. Two members of the union's Executive Committee were detained for seven hours. Tenants in the building were told in future to pay their rent to the Government and not to the ETA. The Worker members further gave examples of events where the police broke up a seminar organized by the ETA, broke into ETA offices and arrested ETA members. Despite two court appearances, ETA members were not prosecuted. One of the ETA members, the acting General Secretary, Mr. Shimales Zewdie, who suffered from tuberculosis, had been held in a cell with around a dozen others and denied medication. All were released on 15 October. In April of this year, the ETA acting General Secretary, Mr. Shimales Zewdie, died as a result of serious health complications following his imprisonment.
The Worker members recalled that the President of the ETA, Dr. Taye Woldesmiate, who had been arrested in May 1996, had now been in prison for three years. He had been charged with conspiracy against high-level government personnel in August 1996, and needless to say, denied bail. Early in 1997, two of the most serious charges against him were dropped. The two main prosecution witnesses had retracted their evidence, stating that evidence had been extracted under torture. One of the prosecutions' witnesses was Dr. Woldesmiate's co-defendants, Kebite Desita, the President of the Retired Teachers' Association, affiliated to the ETA, who had also been in prison for three years following his arrest in March 1996. Dr. Taye Woldesmiate appeared in court once again in July 1998. On this occasion, he said that prison guards had been harassing him and had threatened to shoot him. The judge replied that he had no power over the prison administration and ordered him to remain handcuffed until his next court appearance on 15 September. He actually remained handcuffed until 28 September. His handcuffs were removed once a day when he was allowed to go to the toilet. In August 1998, Amnesty International issued an urgent appeal on behalf of Dr. Taye Woldesmiate and the cruel, inhuman and degrading treatment he was receiving. Amnesty International reported that his cell had no natural daylight and that an electric light was switched on for 24 hours a day. In 1999, Dr. Taye Woldesmiate appeared in court several times but the case was adjourned each time because of the illness of his co-defendant, Kebite Desita. On 29 March this year, after three years in prison and of ill-treatment, Kebite Desita died in prison. On 3 June 1999, Dr. Taye Woldesmiate was convicted on the false charge of conspiracy to overthrow the State. The conviction carried a possible sentence of five to 25 years in prison, or death. The Worker members were outraged at this conviction. Needless to say, there were serious questions about the whole process of the trial. Changes to the judiciary had raised serious questions about its independence.
The Worker members observed that, in its observation, the Committee of Experts noted with serious concern the grave allegations in respect to Ethiopia which had been brought before the Committee on Freedom of Association. The Committee of Experts also noted that Ethiopia's 1993 Labour Proclamation excluded teachers from its scope of application. Furthermore, workers in the state administrations, judges and prosecutors could not join trade unions. There were broad restrictions on the right to strike, and essential services were given too broad a definition. Labour disputes could be reported to the Ministry of Labour by one of the parties for conciliation and binding arbitration. They recalled that, one year ago, they expressed the wish to come back to this case this year in order to measure whether there had been any progress. However, despite the Worker members' efforts to hold a dialogue with the Government, the situation had in fact deteriorated. Despite the Committee's conclusion requesting the Government to reopen dialogue with the ETA, this had not taken place. Instead three of its leaders were now dead and another one was still in prison because of their trade union activities. The Worker members demanded the immediate release of Dr. Taye Woldesmiate, and demanded that the Government guarantee the safety of ETA leaders as they tried to meet with their members in various regions of the country. For the Worker members, Ethiopia was guilty of the most brutal treatment of trade unionists. The strongest language possible should be used and the Committee's conclusion of last year needed to be reiterated.
The Employer members stated that no new information had been provided since 1998, when the case had been discussed by the Conference Committee. Referring to the exclusion of teachers from the scope of application of the labour legislation, they stated that the Government had already indicated in 1995 that it was drafting a Bill to amend the existing legislation, which blatantly violated the provisions of the Convention. With reference to a case where trade union leaders had been removed, he noted from the Committee of Experts' report that the Government had lodged an appeal on this decision. Although the Government representative had provided some oral information on this case, written information was required to enable the Committee to examine the Government's compliance with the principles enshrined in the Convention. The Employer members further stated that the Ministry of Labour had cancelled the registration of the former CETU, which was tantamount to extensive government interference in the right on freedom of association, and a violation of the Convention. As regards the restrictions on the right to strike imposed by the Labour Proclamation, the Employer members disagreed with the Committee of Experts' definition of "essential services" which it considered too broad. The Government could therefore not be requested to follow the Committee of Experts' recommendations in respect of "essential services". In conclusion, the Employer members acknowledged the large number of discrepancies between the legislation and the provisions of the Convention. The Government should therefore be urged to take serious action in order to bring its law and practice into conformity with the Convention.
The Worker member of Ethiopia disagreed with the Committee of Experts' observations to the effect that trade union leaders were nominated and removed by the administrative authorities. He assured the Committee that no trade union leader had been proposed by the Government. The Labour Proclamation clearly laid down that workers could freely elect their representatives. As regards the need to amend the Labour Proclamation, he acknowledged that labour legislation failed to include important provisions and that certain sections were ambiguous. In this regard he strongly endorsed the Committee of Experts' request to the Government to amend the labour legislation and indicated that his Confederation had been collaborating with other organizations to that end. He explained that having identified the inadequacies of existing labour legislation, certain amendments had been prepared by the workers and would be submitted to the National Symposium. He also mentioned that in support of these efforts, the East Africa Multidisciplinary Team was playing an important role in coordinating and bringing together the social partners. Finally, he pointed out that Ethiopia had ratified 19 ILO Conventions, six of which were core Conventions. In this regard, he supported and encouraged the Government to ratify more Conventions in order to increase the protection of workers' rights.
The Worker member of the Netherlands underlined that the present regime in Ethiopia had promised fundamental changes in the legislation but that no changes had been implemented to date. He stated that the Government, just as the Dergue regime, had been trying to use the trade union movement as a transmission belt for its own political purposes. This was clearly illustrated by the fact that the CETU had refrained from criticizing the Government's position. He then brought the Committee's attention to a number of trade unionists, which he named, and who had recently disappeared without trace. He accused the Government of using the conflict with Eritrea to abduct trade unionists. Finally, he again questioned the Employer members' stance on the right to strike, and in particular the discrepancies between their positions in the Conference Committee, on the one hand, and in the Committee on Freedom of Association, on the other.
The Worker member of Ghana expressed his full support of the statement made by the Worker members but wished to emphasize a few points. The statement made by the Government in defence of the serious violations of the Convention was all too familiar. In fact, in his view, there had been absolutely no improvement in the situation in Ethiopia as far as this particular case was concerned. As far back as 1994, the Government had stated in its report that it expected to adopt a new law "in the very near future" to redress the issue of the violation of the Convention raised by the Committee of Experts. Five years later, this law had still not been adopted. It was apparent that the Government of Ethiopia did not intend to take measures to improve the situation of teachers and that other workers in Ethiopia would continue to suffer serious denials of basic human rights. Furthermore, it was not a matter for the Government of Ethiopia or for any other government for that matter to decide on behalf of workers which associations or unions they should become members of. Such acts constituted gross and blatant violations of the Convention and should not be allowed. He therefore suggested that the Government should not only be criticized in the most serious terms possible, but that it should also be requested to bring its law and practice into conformity with the provisions of the Convention as a matter of urgency. Finally, in referring to the statement made by the Worker member of Ethiopia, he denounced the Government representative's apparent efforts to extract a statement from the workers' benches endorsing the Government's actions but trusted that the Committee would be fully able to evaluate the merits of the statement made.
The Worker member of Germany noted with deep concern the present situation as illustrated by the Committee of Experts and the Committee on Freedom of Association in the country regarding freedom of association. A report, published by the ICFTU a few days ago, had also illustrated the serious violations of the Convention in the country. For this reason, a German trade union had addressed the Foreign Minister of Germany and the Prime Minister of Ethiopia. He further recalled that a leading union activist, Mr. Assefa Maru, had been murdered two years ago in Addis Ababa and the Secretary of the ETA, Mr. Tange, had been imprisoned. To date, no judgement had been pronounced. He further stated that, in general, union activists were frequently imprisoned, dismissed or tortured. Moreover, the restrictions concerning the right to strike were very serious. Referring to the privatization of the telecommunications sector, he considered that workers in telecommunications could not be considered workers of an essential service. In conclusion, he urged the Government to implement the recommendations made by the Committee of Experts and the Committee on Freedom of Association.
The Worker member of Senegal endorsed the observations of the Worker members and the long list of facts which bore witness to the serious violations of the Convention and stressed the importance of denouncing these violations in such international forums as the ILO. As regards the Committee of Experts' observations, which serve as a basis for the present Committee's work, he considered wholly unacceptable several of the serious issues raised, such as the question of forced dismissal of trade union leaders. He underlined the importance of the ILO's nominative function in the legal arsenal of member States. However, he expressed his doubts that the forthcoming legislative amendments announced would serve only as a delaying tactic. He also questioned the capacity and the extent of government interference in seeking to replace organizations which had been freely elected by government-controlled organizations.
The Government representative thanked all the speakers for their comments and endorsed a number of points raised. However, he expressed his profound disappointment in respect of statements made by a number of speakers and completely rejected any suggestion that his Government was blatantly violating the Convention. He mentioned that, for the first time in the history of his country, trade unions enjoyed real freedom of association. He also showed his appreciation for the constructive comments of the Committee of Experts and stated that legal amendments to the Labour Proclamation would be passed in due course. However, he pointed out that such amendments took a considerable length of time and were dependent upon the Government's legislative agenda. As regards Dr. Taye Woldesmiate, he recalled that the charges against him were still being deliberated before the courts and that, in any case, they were not related to his trade union activities. As regards the incident between the police forces and Mr. Assefa Maru, he also recalled that Mr. Assefa Maru had died in an exchange of gunfire when he refused to surrender and that these facts had been clearly established. As regards the issue of deportation, he indicated that it was still under discussion with the tripartite committee. This issue had been introduced to the Governing Body under the false pretence of non-observance of ratified Conventions, and the Governing Body had established a tripartite committee to examine the matter. Hence, it would be adequately addressed by that committee. He indicated that he would not go into detail, but that he wished to inform the Committee that deportation was taking place in full conformity with its international obligations and the relevant national laws. Finally, he reiterated his Government's strong commitment to the principles of the ILO.
The Government representative of Eritrea initially thanked the Committee for its efforts to halt the blatant violations of human rights in Ethiopia. He expressed his regret at hearing a worker betray workers' principles and wished to give evidence in respect of the actual violations of the Convention which had been brought to his attention. He declared that thousands of workers and members of executive committees of trade unions had been deported from Ethiopia to Eritrea on the alleged grounds that they were of Eritrean origin. He maintained that some 60,000 workers had been deported and had also been denied the right to wages earned. He also denounced the alleged practice of maintaining and exposing prisoners to prison conditions which endangered their health. He concluded by strongly condemning the behaviour of the Ethiopian Government.
The Government representative of Ethiopia wished to put on record his most serious disagreement with the misrepresentations made by the Government member of Eritrea. In his view, these statements constituted a serious affront to this Committee and a flagrant abuse of this forum. This Committee should not be used to advance narrow political agendas. In any event, he wished to clarify that the deportations of Eritreans, which had taken place in Ethiopia, related to Eritreans whose clandestine presence in Ethiopia could not be accepted on grounds of national security. These events had nothing to do with the issues presently under discussion.
The Worker member of the Netherlands stated that he believed that the two previous interventions were irrelevant in the context of the Committee's work.
The Worker members called on the CETU to clearly show that they were representing workers' interests and that they were not Government appointees. As regards the position of the Employer members on the right to strike, they made a reference to two resolutions which had been adopted by the Conference in 1957 and 1970.
The Employer members referred to the question, of a more technical nature, raised by the Worker members, regarding the presentation of the Employers' view on the right to strike. In this respect, they recalled article 7 of the Standing Orders of the Conference defining the mandate of the Conference Committee, which had been in existence since 1926 and which differed from the Committee of Experts' mandate. Moreover, the Committee on Freedom of Association, established in 1950, had similar functions to the Fact-finding and Conciliation Commission on Freedom of Association. Its task was to compile facts on the subject in question and to undertake an initial evaluation. In this regard, it was of no importance whether a State had ratified the Convention. The Conference Committee's mandate was in fact to examine the application of ratified Conventions. In this regard the positions expressed by the Employer members had been first discussed among themselves and subsequently presented to the Committee by its spokesperson.
The Committee noted the statement made by the Government representative and the discussions which took place thereafter. It was deeply concerned also with the Committee of Experts that the Committee on Freedom of Association had to examine, once again, very serious complaints against the Government. These complaints related to the removal of elected trade union leaders and the nomination by the administrative authorities of members of the executive committees of these trade unions, as well as the cancellation of registration of a trade union confederation and detention of trade unionists. It further deplored that the Government had not yet re-registered a teachers' association despite a court order to do so, and asked for information on the manner in which teachers' associations could promote their occupational interests given their exclusion from the scope of the Labour Proclamation. Recalling that last year it had expressed the firm hope that the Government would reopen dialogue with the Ethiopian Teachers' Association, the Committee noted with deep concern that the Committee on Freedom of Association had deplored the fact that trade union leaders have been detained without trial for more than three years. The Committee finally insisted on the urgent need to remove the discrepancies between the law and practice, and the Convention. It strongly urged the Government to take all the necessary steps without delay to ensure that the right of association was recognized for teachers to defend their occupational interests, that workers' organizations were able to elect their representatives and organize their administration and activities free from interference by the public authorities, and that workers' organizations were not subject to administrative dissolution in accordance with the requirements of Articles 2, 3 and 4 of the Convention. It asked the Government to respect fully the civil liberties essential for the implementation of the Convention. The Committee expressed the firm hope that the Government would supply detailed information in its report due this year to the Committee of Experts on the concrete measures taken to ensure full conformity with the Convention both in law and in practice.
Guatemala (ratification: 1952). A Government representative stated that in April 1997 the Guatemalan Ministry of Labour had submitted to the Tripartite Committee on International Labour Affairs, the observations on the discrepancies which the Committee believed to exist between national legislation and Convention No. 87. This first round of discussions did not yield a consensus on the draft reform, as the Committee of Experts had noted in this year's report. It had also taken note of the internal difficulties which had prevented the Tripartite Committee from being set up since the beginning of 1998. One month after the Government representative had taken up office as Minister for Labour, in July 1998, the Tripartite Committee was set up. One of the tasks awaiting this Committee was to approve a working agenda; the Minister of Labour considered that priority should be given to recognition of the recommendations of the Committee of Experts therein. The agenda was to be proposed by a tripartite subcommittee, formed for this purpose. This subcommittee, like others, including the subcommittee mandated to revise a draft Bill to strengthen the sanctions regime of the Labour Code, had not submitted a proposed agenda. It should also be noted that the Committee had functioned irregularly and had difficulty in achieving a quorum. For example, in 1999, only five of the 15 sessions provided for took place. The Government, in line with the provisions of the peace agreements, laid stress on tripartite dialogue, since it considered it the most suitable method of dealing with the various fields of labour relations, including issues such as an agreed alignment of the provisions of national legislation with Convention No. 87. The Government acknowledged that the issue of respect for Convention No. 87 had for several years been the subject of the attention of both the Committee of Experts and the present Committee, and that his own attention was, therefore, inevitably engaged. The Minister for Labour requested the Tripartite Committee to declare this a priority issue, so as to initiate discussion as quickly as possible, establishing a reasonable time-limit to arrive at conclusions, with the understanding that beyond this limit, should agreement not be reached, the Ministry for Labour would elaborate draft reforms to submit for the consideration of the legislature. He expressed his hope that in this the Government could count on the technical assistance of the ILO, so that the proposals of the Tripartite Committee, or in their absence those formulated by the Ministry for Labour, should receive adequate technical aid. Technical assistance would also be required in respect of the final question referred to by the Committee of Experts in its report with regard to essential services. The Government had the political will to promote and instigate action in this connection, to arrive at an agreement and a solution to the issue raised by this Committee.
The Worker members thanked the Government representative of Guatemala for the additional information that he had supplied and recalled that this case had been examined by the Committee for many years. The situation of freedom of association in Guatemala was the subject of a special paragraph in 1984, and was also examined in 1991, 1993, 1995, 1996 and 1997; in addition, a direct contacts mission filed its conclusions in February 1995. Already in 1996, the Workers' group had qualified this case as very serious because of the context of violence and repression that reigned in the country. In 1997, at the beginning of the peace process the Committee as well as the Committee of Experts, while indicating their understanding of the situation, asked the Government to take the necessary measures as soon as possible to put an end to the interference of public authorities with the activities of trade union organizations and to other restrictions on trade union freedom.
The comments of the Committee of Experts referred once again this year to violations of essential trade union rights such as: the monitoring of trade union activities, multiple restrictions on the right to organize based on nationality, existence of a police record, aptitude for or having an occupation and limitations on the right to strike with contraventions subject to the imposition of prison terms of up to five years. It was appropriate, moreover, to recall the numerous complaints that were pending before the Committee on Freedom of Association.
The report of the Committee of Experts indicated the intention of the Government to examine the question of services that were not considered essential in the context of the right to strike. However, with regard to the other points raised, the Government referred international questions to the Tripartite Committee. The development of the situation could not be considered satisfactory. Two years ago, the Workers' group had already made known its apprehension in indicating that the existence of purely formal structures was not only insufficient but could also be the basis for new delays enabling abuse and impunity for the perpetrators. It was regrettable to observe that no measure had been taken to put the Labour Code into conformity with the provisions of the Convention. The Government seemed to use the above-mentioned Tripartite Committee to justify its lack of action in so far as until now no initiative had apparently been taken to place the questions raised by the Committee of Experts on its agenda.
In addition to this lack of progress there was a difficult and violent social climate. The complaints that had recently been filed with the Freedom of Association Committee by the CGT of Guatemala, the CLAT and the CMT, on the one hand, and by the CISL, on the other hand, were evidence of a situation where labour insecurity and instability, arbitrary dismissals for trade union reasons, threats and many anti-trade union acts including kidnapping and even the assassination of trade union leaders and militants prevailed. This situation, in addition to the impunity of those responsible for such crimes, required great vigilance. It was unacceptable and frightening to note that the inertia of the authorities was paid for in human lives.
Despite the observations that had been formulated on many occasions, no progress had been noted since 1991. Faced with continuous and serious problems with the application of the Convention, the Committee's conclusions should be included in a special paragraph and the Government once again encouraged to adopt the required measures to ensure the application of the provisions of this fundamental Convention as soon as possible, both in law and in practice. The Workers' group intended to discuss this case next year and hoped to observe progress in the application of the Convention, in the absence of which the conclusions of the Committee should be renewed in another form.
The Employer members stated that in the 1980s the Committee had dealt with this case from time to time and in the 1990s again on five occasions, most recently two years ago. They noted that the case concerned many restrictions on freedom of association. While many of the problems could be linked with the long civil war, since the signing of the 1996 peace accord, the prerequisites for positive change had existed. In 1997, the Minister had announced the Government's intention to make the necessary legislative changes and in this context to set up a tripartite committee. It was now obvious that this Tripartite Committee was not active. They noted that according to the Government some of the delays resulted from the fact that the Workers' group could not agree concerning its presence on the committee and, therefore, only a few of the scheduled meetings could take place. However, this could not justify a large number of the other criticisms that had been levelled by the Committee of Experts, particularly concerning interference in the internal administration of trade unions. The State was not entitled to interfere in the internal administration of trade unions, and in this regard there had clearly been a violation of the Convention.
As regards the Committee's observations concerning the right to strike, they disagreed with the views expressed by the Committee of Experts. The Employer members were of the view that since the Convention did not provide detailed regulations in this respect, none should be inferred. The Committee of Experts' interpretations with regard to the right to strike were too far-reaching and did not derive from the provisions of the Convention. In this respect, the Employer members could not share the recommendations made by the Committee of Experts to the Government on this point. They welcomed that questions concerning industrial relations were being addressed in the context of national tripartite consultations. However, since issues of industrial disputes were an internal matter, it would be inappropriate for the Committee to comment thereon.
On the issue of the interference of the public authorities in the internal administration, programmes and the structure of trade unions, the Employer members emphasized that changes without delay were required since these matters had been under discussion for a number of years. While the delays in remedying the violations could partially be attributed to the social partners themselves, they stressed that ultimately the Government must take responsibility for ensuring compliance with the Convention. They acknowledged that there was a difference between a peace accord and true peace, and stated that it was likely that difficulties in changing law and practice had been a consequence of the long civil war. In their view, the Committee should urge the Government to take more active measures than in the past to bring about the necessary changes, and they called on the Committee to address an urgent appeal to the Government in this regard, including asking for all relevant reports. They stated that if no progress was observed, this case should be examined again by the Committee but in a different form.
The Worker member of Guatemala said that the Government of Guatemala should be obliged, once and for all, to cease confusing the national and international communities with double talk. Democracy and peace for the people could not be obtained through talk and promises and still less with signed pieces of paper. Democracy and peace was built on firm facts including, among other things, freedom of association and the respect of fundamental rights of persons, contained in the ILO's Conventions, and in this case in Convention No. 87.
He reiterated that Guatemala's legislation was not in conformity with the provisions of the Convention, despite the many observations of the Committee of Experts and the fact that this case had been discussed before this Committee for many years. The lack of political will of the Government was demonstrated by the fact that it had been necessary to resort to a direct contact mission in 1995 that dealt with the violation of trade union rights and the lack of union freedom which had been denounced by the Guatemalan trade union movement. Although the Government had always agreed to respect union freedom and bring legislation into line with the recommendations of the Committee of Experts, the situation remained the same. A United Nations report in March 1999 raised the question of non-respect of Convention No. 87 and referred to the views expressed by the Committee of Experts, citing concrete examples.
He regretted that the Government of his country tried to justify with false statements the impossibility of bringing Guatemalan legislation into harmony with the recommendations of the Committee of Experts, which they had claimed was due to a lack of consensus in the Tripartite Committee. He stated that he had been a titular member of this committee in existence since 1998 and that during this time he had seen no draft bill bringing national legislation in line with the recommendations of the experts.
Another Worker member of Guatemala stated that government supervision of union activities had enabled the General Labour Inspectorate to interfere with workers' trade union organizations. This was the case with Hidrotecnica SA where, in February 1997, the Labour Inspectorate had altered the employment registers to enable the employer to dismiss all workers who were members of the trade union. The previous Minister for Labour, in response to the union denunciations, had initiated proceedings within the Public Ministry for falsification of documents. To date, however, the case was not resolved, the workers remained dismissed and the union destroyed.
The speaker pointed out that the Penal Code regulation which enabled judgement to be passed on those persons whose intent was to paralyse or disturb the functioning of enterprises, had been used by the enemies of trade unionism to pass penal sentences on workers constituting a union, and that this had occurred in several cases in coffee and banana plantations, where approximately 200 workers were charged with criminal offences for simply being trade union members. Those who considered that trade unions were harmful to enterprises and the national economy used this regulation to destroy the unions, by converting them into criminal institutions. During the war, trade unionists had been murdered and now, during the peace process, they were imprisoned in application of dubious judicial procedures with only the appearance of legality.
The speaker said that freedom of collective bargaining and the right to strike had been removed from workers in the public sector and arbitration had been imposed on them, thus violating Conventions Nos. 87 and 98. Since the entry into force of Act 35-96 of 27 May 1996, prohibiting collective bargaining and strikes, there had been no cases of arbitration, which meant that these workers had lost all their rights. The report of the Committee of Experts showed clearly that labour legislation in Guatemala violated the principles of freedom of association, collective agreement and the right to strike contained in the Conventions ratified by Guatemala. This trade union policy resulted in those workers claiming their rights being met with acts of violence, such as had occurred in 1998 on the El Paraiso banana plantation. On two occasions, the peasants had been fired on from a helicopter inflicting bullet wounds on a worker each time, while the aggressor still went free. This year, two workers from Zacapa were murdered for trade union activity, while the author of the crime remains at liberty. There had been a recent spate of death threats against trade union leaders.
The speaker called on the international community united in the ILO and at this Conference, to obtain its support so to avoid returning to the past of the horror and death at the time of war. He urged that his country should respect the agreements undertaken and establish a true rule of law, to bring an end to the lack of punishment for the violation of workers' rights. He requested that Guatemala should be included in a special paragraph, since no positive results had emerged from the direct contact mission of 1995. Since July 1998, when the present Tripartite Committee was established, the Government had made no presentation on any issue relative to the Committee of Experts' observations.
A Worker member of Brazil stated that the Government of Guatemala's action over workers' associations was very worrying and there had been cases of persecution and murder of trade union leaders. Convention No. 87 was one of the mainstays of fundamental rights of the ILO, and the freedom inscribed in its Article 2 was quite incompatible with everything at present happening in Guatemala. Workers should be able to organize their unions free of all government supervision and in conformity with Articles 2 and 3 of the Convention, they should be free to elaborate their statutes, which was to say that they should be able to elect freely anyone who wished to join their executive committee. The same could be said of the right to strike. Striking was more than a right, it constituted an expression of freedom. In conclusion, he stated that essential services could not be understood in so wide a sense as to reduce the freedom of action of the Guatemalan unions. This was the spirit in which the decisions of the supervisory bodies of the ILO had been conceived.
The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries, fully supported the statement made by her Worker colleagues concerning the problems in the implementation by Guatemala of the Convention, which it had ratified as long ago as 1952. The Committee of Experts had recalled its previous comments on the case and listed a number of restrictions in the Guatemalan Labour Code on the right to organize and the right to strike. These restrictions on the establishment and activities of trade unions and the right to strike showed the Government's unacceptable attitude in the past to trade unions and trade union activities. However, this legal framework merely provided the background for the gross abuses of labour rights in Guatemala and legitimized the abuses committed by employers and the authorities. Minugua, the United Nations human rights organization in Guatemala, confirmed that the right to organize and freedom of association were severely limited by the authorities' failure to protect labour rights. By not bringing its legal framework into conformity with the provisions of the Convention, the Government was tolerating and contributing to the violations of the Convention. Workers were being dismissed for no other reason than trade union membership. In the few cases in which the courts demanded the reinstatement of dismissed workers, their orders were not followed. She stated that the authorities also participated in the harassment of trade union members. After a strike on a COBSA banana plantation, arrest warrants had been issued for 131 members of UNSITRAGUA. The charges had been based on lost profits during the strike, and were brought by a solidarist association in alliance with the COBSA banana plantation owners. In this way, a labour conflict had been turned into a criminal case. These charges and arrest warrants had only been revealed recently, even though the strike had taken place some time ago. In the plantations in question, 585 of 700 members of UNSITRAGUA had been dismissed, while all 355 members of the solidarist association remained employed.
She added that the passivity of the Department of Labour in the export processing industry is well known. In contrast with the 11 unions that had existed in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" establishments where they considered there to be "too many" unionized workers, only to reopen and hire more compliant workers. Women workers were particularly vulnerable to harassment by their employers.
She emphasized that union leaders continued to be killed in Guatemala. In the consequent climate of fear, workers did not dare to organize or be actively involved in the trade union movement. She, therefore, urged the Committee to take the strongest possible measures to ensure that the Government changed its legal framework to bring both its law and practice into conformity with the Convention, and thereby ensure effective protection of the rights of all workers to organize and take part in industrial action.
The Worker member of Uruguay stated that the Committee of Experts' report was more than conclusive on this case. He wondered how it was possible that, among other incredible things, of the elected trade union executives, at least three had to be able to read and write. This was an attack on basic human rights. A person who had not had access to education could not be elected to represent his colleagues in respect of social and employment questions. The speaker asked whether by any chance it was their own fault that they could neither read nor write, whether there were any education plans, and what percentage of the GNP was spent on education. To illustrate the situation in Guatemala, he mentioned the case of a lawyer who, with respect to the employment of staff in an enterprise, indicated ways to discriminate against and persecute workers who engaged in trade union activities, always to destroy unions. This was a clear example of someone who had studied and who made use of his studies in attacking the unions and, in his position as lawyer, gave advice on the violation of the fundamental ILO Conventions. The speaker wondered what action the Government would take regarding these facts. The speaker stated that he was aware that the Government of Guatemala had been elected to the Governing Body and, he wondered how it would collaborate in the administration of labour law in respect of other countries and if it would not be better for it to bring its legislation rapidly into line with Convention No. 87, so as to be able to ensure the most fundamental of human rights in other countries.
The Worker member of the United States expressed regret that while the Committee had reviewed this case thoroughly on a number of occasions, most, if not all of the violations raised had not yet been remedied. He asserted that there could be violations of the Convention through acts of omission as well as of commission. It was, therefore, not only legal limitations on freedom of association that contravened the Convention, but also a government's failure to prevent effectively and remedy the interference of other parties in the workers' exercise of associational rights, such as in non-violent strikes and concerning organizing and collective bargaining.
He referred to the 1999 ICFTU report on Guatemala stating "every method in the book is used to destroy trade unions". He also made reference to the workers' rights and freedom of association review process of the General System of Preferences in US trade law. In May 1997, the US trade representative having completed a review on Guatemala, stated that the country needed to make substantial advances and changes, and reserved the right to reinitiate the review if necessary. However, the Government had failed to make those substantial advances and changes. He stated that the country's restrictions on the right to strike clearly contravened the Convention. In this context he pointed to sections 243 and 249 of the Labour Code and section 390(2) of the Penal Code which in his view prohibited any effective strike action in both the rural and the urban sector. He asserted that the statements made during the Committee only confirmed that the necessary legislative measures to redress these fundamental violations of the Convention had not yet been implemented. He expressed regret that the Tripartite Committee which was supposed to formulate these legislative measures seemed to have been at a standstill since July 1998.
He emphasized that a State's administrative and judicial capacity to protect and advance freedom of association was a key to its compliance with the Convention, and that, in May 1998, a Labour Code reform package had been passed ostensibly for this purpose. However, this reform totally failed to improve the enforcement capacity since it imposed no fines for violations and did not provide authority to the Labour Ministry to impose sanctions without having to await court action. Moreover, the Labour Code reform failed to ensure the implementation of article 380, providing that workers who had been unlawfully dismissed or victimized would be reinstated within 24 hours; many dismissed trade unionists had been waiting for years for redress. He joined a number of the other speakers in urging the Committee, given the lack of any progress even in the wake of direct contacts missions, to include this case in a special paragraph.
The Government member of Colombia stated that it would be dishonest to fail to recognize the profound harm that was caused by non-stop violation of Convention No. 87 by the Government and many employers. A quick glance at the report of the Committee of Experts sufficed to show the unacceptable manner in which the rights of workers were being denied and distorted and this with the greatest impunity. The political Constitution and the Labour Code set forth the rights and guarantees of workers but were in fact nothing more than a dead letter. The speaker cited various cases where workers had been dismissed and persecuted. He also mentioned cases where trade unionists had received death threats. He expressed the hope that the Government would take the measures to protect the lives of trade unionists and would give guarantees regarding freedom of association, collective bargaining and the right to strike. What was the point of signing for peace, if war continued?
The Worker member of Spain stated that, although the report of the Committee of Experts only dedicated a page to Guatemala regarding Convention No. 87, systematic attacks on freedom of association were regular in that country. In March 1994, a United Nations fact-finding mission to Guatemala had produced a new report giving details of attacks against unions. The report denounced continuous connivance between judges and the Government to persecute trade unionists. There were innumerable examples of such action. He cited a case in which the judges had accused several trade unionists of the crime of abortion in a United Nations report. A precautionary injunction had been at the origins of the procedure. Although the persons concerned had then been released, such action weakened the trade union structure. Indeed, a plan to destroy the trade union movement had been revealed in a Guatemalan newspaper. He also referred to the case of an enterprise which had dismissed its workers and, four or five months later, replaced them by workers who had no history of trade union involvement.
The Worker member of Bolivia indicated that it was unacceptable, from any point of view, to prohibit the right to strike and to impose one- to five-year prison terms in this regard. The spokesperson asked how trade union rights could be ignored when the workers themselves were the ones supporting democracies. He recalled that Convention No. 87 had entered into force on 4 July 1950 and that the Government of Guatemala had ratified it on 13 February 1952, but since then there had been no new developments. He called for full compliance with Convention No. 87.
A Government representative of Uruguay regretted Guatemala's position with respect to Convention No. 87 and hoped that the efforts referred to by the Government of that country would soon be made, so as to bring its legislation and practice in line with the letter and the spirit of the Convention. He stated that Uruguay had recently received a Tripartite Committee from the Ministry of Labour of Guatemala, which came to analyse the different aspects of the development of tripartism in Uruguay. The members of the Tripartite Committee had taken great interest in all the activities which had been proposed to them. This recent visit had given him confidence that the Government would expedite and promote the inevitable amendments to its legislation and its practice, in respect of Convention No. 87, so that the peace and democratization process might be clearly felt in the field of labour relations. The election of Guatemala to the Governing Body of the ILO only served to make this responsibility more clear.
The Employer member of Guatemala regretted that it had not been possible to discuss the issue in question in the tripartite committee, as indeed the experts had said in their report. This was due, among other reasons, to the fact that the trade unionists had been unable to agree on who should represent them. This was regrettable since the Employers shared the concern of the Workers regarding violation of Convention No. 87. He also stated that there had been 116 illegal work stoppages, and occupation of plantations and factories. For this reason, the Employers could not accept a special paragraph.
A Government representative stated that as regards the conflict which had ravaged his country for the past 36 years, the peace agreements were not agreements on paper only, but official declarations by his Government before the national and international communities and marked the beginning of a process which could be further improved. The root of the civil war lay not only in poverty and the lack of democracy, but also in the Cold War and in ideologies oriented towards substituting democracy with a dictatorship sustained by the class struggle.
The Tripartite Committee on International Affairs provided a forum in which solutions regarding labour relations could be sought and did not constitute a pretext for avoiding international obligations. However, the workers had not availed themselves of the opportunity to progress from denunciation to dialogue and had not put forward concrete proposals. He pointed out that although the Ministry of Labour had proposed amending the sanctions regime of the Labour Code, in the ensuing twelve month period, neither the workers nor the employers had replied to these proposals. He indicated that of the ten sessions suspended, eight were attributable to the workers' failure to attend Committee meetings, one to the employers, and one to the Government.
As regards the murders referred to, he considered that these kind of references were highly irresponsible. For example, in the case of the murdered trade union leaders in Zacapa, the investigations of the MINUGUA revealed that these trade union leaders and others who had been killed had been murdered for denouncing acts of corruption by municipal officials in Zacapa. Certain workers had made a number of erroneous statements claiming that judges, who were members of a body independent of the Executive, were colluding with the Governor.
As regards the death threats issued against the Secretary General of the CGTG, Mr. Jose Pinzon, these were denounced before the Tripartite Committee, whoc condemned these threats. The Ministry of Labour had requested an investigation into these threats by the appropriate authorities and had followed the case closely. When Mr. Pinzon was asked to provide a copy of the death threat which had been faxed to him, he replied that he had destroyed the fax.
In conclusion, he reiterated his Government's firm commitment to continue to work with the Tripartite Committee in the hope of reaching agreement on the Bill which would take account of the comments that had been formulated in this regard.
The Worker members stated in respect of the statement of the representative of the Government, the Employer representatives and the Employer representative of Guatemala, that other reasons for the non-functioning of the Tripartite Committee on International Labour Questions had been mentioned.
The Committee noted the oral information provided by the Government representative and the debate that followed. The Committee regretted to note that, despite the direct contacts mission carried out in February 1995 and the many debates that had been held in this Committee in the last decade, the Committee of Experts continued to note serious divergencies between the legislation and the Convention. The Committee had previously noted that a firm and lasting Peace Accord had been concluded under the auspices of the United Nations and with the participation of the ILO Area Office. It had expressed the hope that this agreement would result in a period of peace and social dialogue that would make it possible to give full effect in law and practice to this fundamental Convention, ratified by Guatemala 47 years ago. Deeply regretting the lack of progress, the Committee once again strongly urged the Government to adopt the necessary measures to eliminate without delay in law and practice the supervision of trade union activities by the public authorities, the restrictions on persons who were not nationals of Guatemala from holding trade union office and other restrictions on the exercise of the right to organize. Noting with concern the seriousness of the cases pending before the Committee on Freedom of Association, the Committee urged the Government to respect fully the civil liberties essential to the implementation of the Convention. The Committee insisted that the Government supply a detailed report to the Committee of Experts for its 1999 session on the measures actually adopted to give full effect to the Convention in law and practice.
Myanmar (ratification: 1955). A Government representative of Myanmar stated that since the discussion of this matter before the Committee in 1998, the Ministry of Labour had provided a draft Trade Union Law to the Central Laws Scrutiny Body. After legal review by that Body, the draft Trade Union Law was sent back to the Ministry of Labour for consideration by its Law Review Committee, and for inter-departmental circle discussions that took into account the comments of the Central Laws Scrutiny Body. He emphasized that in order to properly draft the Trade Union Law, it was essential to discuss its provisions with employers' and workers' organizations during the year 1998-99, namely:
- from the Employers' side: Union of Myanmar Federation of Commerce and Industry;
- from the Workers' side: Workers' Welfare Association (numbering 2,242): Myanmar Cultural Association, Union of Myanmar Films and Musical Association, Myanmar Literature Workers' Association, Myanmar Construction Workers' Central Association, Myanmar Video Producers' Association, Myanmar Women Entrepreneurs' Association, Myanmar Maternal and Child Welfare Association, Myanmar Medical Association, Myanmar Indigenous Medical Association, Artists' and Sculptors' Association, Myanmar Nurses' Association, Transport Workers' Association.
For this reason, discussions were held with a considerable number of such organizations, which were named by the Government representative. Included among these organizations were employers' associations (separate entities that were independent of employers), the Federation of Commercial and Industrial Employers, and many workers' organizations at every level. These discussions were held for the benefit of such organizations and the various existing structures of workers. In taking into account their input on the draft Trade Union Law, it was also necessary for the Ministry of Labour to consider that at the time of the discussions there was a financial crisis in the region that was having an impact upon foreign investors. Moreover, it was also important when drafting the new Law to consider both the changes that were taking place as a result of the country's decision in 1998 to move toward a market economy system, and the ongoing preparation of a new State Constitution. He stressed that the greater the amount of discussions and input regarding the draft Law, the better it would be drafted. The Government representative proceeded to emphasize that there could be no mechanical approach to preparation of new legislation, as each country had its own situation and circumstances, and that an approach that was effective in one country might not be appropriate for another country. In this regard, he quoted the comments of the Director-General to the Plenary of the International Labour Conference on 1 June 1999 that: "We must understand the specific context of regions and subregions as well as the specific circumstances of the Eastern and Central European countries in transition and countries that are going through a crisis because of the impact of the international financial system, or the forces of nature. It is essential to support a retuned ILO that can be sensitive to differences and can respond with subtleness to the different ways in which the same problem can manifest itself in different societies. It seems to me absolutely indispensable to develop this institutional capacity. I believe it is important to foster a sensitivity about the culture of development. You cannot really understand problems of development so long as you have a somewhat mechanical approach and solutions cannot be proposed simply because they work in other countries. We need a richness of outlook, an ability to differentiate, to understand the specific situations to respond to the real problems and propose new solutions." The Government representative stressed once again that no two countries were alike and that each should be assessed based on its own situation and facts. In his view the Committee should therefore be sensitive to and take into account the different cultures and levels of development of member States. In conclusion, he stated that progress had indeed taken place since the examination of this matter by the Committee in 1998, in view of the drafting of the new State Constitution and of the Trade Union Law, and the extensive discussions regarding its content, and that this progress should be taken into account by the Committee.
The Worker members noted that in spite of the rather brief comments made by the Committee of Experts this year, the repression of freedom of association in Myanmar was one of the most long-standing and serious cases of non-compliance with the Convention before the Committee. Given the complete lack of progress over the years, there was really very little more for the Committee of Experts to say. The seriousness of the case, however, was evidenced by the fact that this would be the 13th time in the past 18 years that the Committee discussed the case and the ninth year in succession. On six occasions, the Committee had placed its conclusions in a special paragraph of its report and, for the past three years, the Committee had cited Myanmar as a special case of continued failure to comply with the Convention. This was quite a dubious record for a Government that continually claimed to be cooperating with the ILO as heard once again today. The Worker member recalled that a direct contacts mission was abruptly cancelled in 1996 without any explanation from the Government. For the past three years, there did not appear to be any momentum behind rescheduling this mission; the Worker member asked the Government representative whether he was able to commit his Government to rescheduling this direct contacts mission for later this year. Such a commitment would have more meaning than the mere issuing of an order in relating to Convention No. 29 just before the opening of the ILO Conference.
The speaker stated that for a number of years, the Government had failed even to submit reports, as noted with profound regret by the Committee of Experts last year. This year, the Government had finally submitted a report reminding the Committee of Experts that a new Constitution was being drafted as well as a revised labour code. Only when this process was completed and a new labour code enacted -- the Government seemed to be saying -- could it demonstrate in practice its new-found respect for freedom of association. The Committee of Experts had noted that the drafting of new labour legislation and a new Constitution had now been in progress for many years, yet "no specific progress or developments have been communicated ... in this regard". The Government representative did not mention any timetable and the Worker members asked the representative whether his Government was prepared to indicate when this task would be completed. Also, it would be extremely helpful if the Government would submit draft texts to the Committee of Experts before the end of the year.
For Workers members, there did not exist any operating trade union law in Myanmar nor any legal structure to protect freedom of association. As noted last year, there was a Decree issued in 1988 by the military called the Law on the Formation of Associations and Organizations (No. 6/88) under which such associations and organizations had to obtain permission from the Ministry of Home and Religious Affairs before being established. This Law stated that the associations and other organizations would be disbanded if they attempted, incited, encouraged or assisted in undermining law and order, local peace and security and the smooth and secure operations of transport and communications. The Worker members wondered whether this was one of the laws now under revision and, if so, whether the Government could provide information about its revision to the Committee of Experts.
The Worker members informed the Committee that the General Secretary of the Federation of Trade Unions of Burma (FTUB), Mr. Maung Maung, was in the Committee's room. It was precisely Law No. 6/88 which was used 11 years ago by the then State Law and Order Restoration Council (SLORC) to fire Mr. Maung Maung and six other members of the All Burma Mining Union. The Worker members observed that the Government representative continued to remind the Committee that enacting new legislation could take time. On this point, the Worker members agreed especially when the legislature that was elected ten years ago had never been allowed to convene. Many elected Members of Parliament had been arrested repeatedly over the years. The Worker members recalled that the Government representative characterized the State Peace and Development Council (SPDC) -- the successor to the SLORC, or in other words the ruling military junta -- as a legislative body. How could a military junta transform itself into a legislative body? More importantly, how much longer would the Government need to revise its laws in order to put it into conformity with the Convention?
The Worker members considered that a change in law -- if it ever were to take place let alone in conformity with the Convention -- was only a first step towards protecting freedom of association in law and in practice. There were no independent unions in Myanmar today and any attempt to organize one was dealt with ruthlessly. The courageous few who had tried to exercise their rights under the Convention did so at great personal risk. As was mentioned earlier, representatives of the FTUB still languished in prison serving long prison terms. They were considered terrorists by the regime. The Worker members observed that the Myanmar Worker delegate was listed as an oilfields and worksites supervisor for the Myanmar Oil and Gas Enterprise. He was not even identified with any worker association or organization. In fact, it was precisely this state enterprise which had been associated for many years with the alleged use of forced labour to build the notorious Yadanar gas pipeline.
In conclusion, the Worker members noted that the Committee was once again asked to accept in good faith the Government's promises that, after 40 years, changes were coming. However, the Committee should not be worn down by the lack of any real progress for yet another year, as disappointing as this was. Rather the regime's continuing defiance should make the Committee more resolute in insisting in the strongest terms possible once again that Myanmar live up to its treaty obligations under the Convention. This was not a matter of singling out or picking on Myanmar as stated by the Government on a number of occasions. The Government should be reassured that the Committee would drop this case from the list the minute its obligations under the Convention were met. But until this happened, the Committee would continue to bring up the matter, year after year for another 40 years if necessary.
The Employer members thanked the Government for the information provided to this Committee. They considered that the context of this particular case was important. They recalled that 44 years ago the Government of Myanmar had ratified Convention No. 87 and that its failure today to enact legislation on freedom of association was a fundamental violation of its international obligations. There was simply no right to organize in Myanmar and over the years, the Government had showed utter disdain for the supervisory machinery of the ILO as well as for this Committee. Since 1980, this case had been discussed over a dozen times and there had been numerous special paragraphs as well as continued failure to implement the Convention.
They considered that there was a connection between this case and the case concerning the Forced Labour Convention, 1930 (No. 29). Indeed, if freedom of association existed in the country, a vibrant trade union movement would be fighting to eliminate forced labour. Furthermore, there was an absence of real legislation on the right to organize and there was no way to evaluate the true nature of organizations. They asked the question of what was the timetable of the Government in order to address these problems. In the view of 44 years of failing to implement the Convention, they expressed their scepticism with regard to the Government's commitment. This scepticism was reinforced by the Government's abstention on the Declaration.
The Worker member of Japan expressed his support for the views of the Worker members reiterating that this case was one of the worst cases examined by the Committee of Experts. The Committee had been commenting on violations by Myanmar in law and in practice of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), for 40 years focusing on violations in practice, the speaker asked the Government representative to provide information regarding the situation with respect to two labour union leaders, Mr. Myo Aung Thant and Mr. U Khin Kyan. He inquired whether they had been released from prison and were able to participate in trade union activities. Furthermore, according to information provided by Amnesty International, Mr. Than Naing had been arrested in 1977 following a demonstration, and he was sentenced to five years' imprisonment. After his release in 1982, he was not reinstated in his position as a government official, but became a shopowner and a writer. Following social unrest in 1988 Mr. Than Naing had been arrested again and without a proper trial he was sentenced to life imprisonment. The Government of Myanmar was requested to provide information whether Mr. Than Naing had been released from prison in 1998 in application of the law of 1992, pursuant to which all sentences for life imprisonment were commuted to ten years imprisonment. The speaker further requested the Government to explain why no trade union delegate had been accredited to the Conference this year. In his view the person designated as a Workers' delegate did not seem to be affiliated to a trade union. Finally, the speaker asked the Government to provide a list of the trade unions that were authorized to operate freely in Myanmar and to explain why the Federation of Trade Unions of Burma (FTUB) was compelled to operate outside the country.
The Worker member of South Africa spoke in full support of the statements made by the Worker members. He pointed out that, for the past ten years, the Government representative of Myanmar had stated that Myanmar was in the process of revising its legislation, but that no progress had been made in this regard. The Government representative was making the same statements given ten years ago. It was an "off the shelf" speech upon which the Government representative of Myanmar made no substantive changes. There were no legally functioning trade unions in Myanmar and no legal structure to protect trade unions. There was no legal framework to protect collective negotiation or to protect workers from acts of anti-union discrimination. The Federation of Trade Unions of Burma (FTUB) was forced to operate outside of the country. He recalled that the FTUB was founded in 1991 by trade unionists who were subsequently fired from their jobs by the military regime. The FTUB coordinated its activities with the banned National League for Democracy, which won the 1990 elections, but was prevented from taking office by the military regime, who nullified the election results. The FTUB remained under the constant surveillance of government police and military intelligence agents. He drew the Committee's attention to the fact that Myanmar had been discussed year after year, but no progress had been made. Instead, the Government had continued to make promises and denials and to violate the provisions of the Convention. Referring to the earlier discussions held in the Committee on the use of forced labour in Myanmar, he indicated his belief that this issue bore a direct relationship to the Convention.
He cited a report of the International Confederation of Free Trade Unions (ICFTU), referring to the arrest and detention of certain trade unionists who remain imprisoned. In light of the continued violations of the Convention, the Committee should impose upon Myanmar the severest sanctions possible under the ILO Constitution.
The Worker member of India stated that the description given by the Government representative of Myanmar of the situation in the country was not borne out by reports received from travellers between India and Myanmar. His organization had repeatedly attempted to establish contact with trade unions in Myanmar, without success. If there were free trade unions operating in Myanmar, why was it impossible to establish contact with them? Moreover, none of the trade unions in his country had been able to establish contact with any Burmese trade unions. He considered that this raised a question which the Government of Myanmar must answer. He also pointed out that Myanmar could draft new legislation, but the question remained whether such a law would ensure a true right to organize and freedom of association for the working class. He underscored the need to ensure that trade unions are able to operate openly in the country. He requested the Government representative of Myanmar to supply a list of operating trade unions so that India could establish contact with them. The Government of Myanmar should adopt laws allowing the right to organize and guaranteeing the right of association with international organizations. He called upon the Myanmar Government to respect and restore the long tradition of democracy in Myanmar and urged it to accept the recommendations of the Committee in regard to the Convention.
The Government member of the United Kingdom declared that he was more disappointed than surprised that this Committee should again be discussing Burma's continued failure to comply with this fundamental Convention. Once again, this reflected the regime's disregard for the ILO and for the welfare of the people of Burma. He fully supported the Committee of Experts' call for the Burmese authorities to take immediate steps to guarantee genuine freedom of association without further delay. In light of the special paragraph and of the discussion on Convention No. 29, he trusted that this Committee would send the strongest possible signal to the Burmese delegation that this Committee would no longer tolerate their refusal to honour their international human rights obligations.
The Government representative explained that the associations previously mentioned were quasi-trade union associations. They were registered with the Ministry of Home Affairs, and were independent of the government structure, operating independently of the Government. In response to the request from the Worker members that the Government provide a timetable for completion of the revision of Myanmar's legislation, he indicated that it was necessary to take account of the country's circumstances, as well as of the discussions being held in the context of the revisions. The Government would be reporting regarding progress made in amending its Constitution and laws, as stated in its last report to the Committee of Experts, but its ability to do so was dependent upon these circumstances. He, therefore, asked that the matter be given time and noted that the draft legislation would become law in due course. The copy of the draft legislation cannot be given as all draft laws are under the Official Secrets Act [India Act XIX, 1923.] (2nd April, 1923.), substituted by the Union of Burma (Adaptation of Laws) Order, 1948, which was an Indian Act given under adoption by Myanmar when it received its independence. Further, responding to comments made by the Worker member of Japan regarding actions taken by the Government against certain persons, including those persons not allowed to re-enter the civil service, he stated that those actions had been taken because those persons had violated criminal laws, such as by the commission of terrorist acts. No terrorist will be condoned under any system of law in any country, even in Japan. Myanmar does not condone such action also. Civil service in all countries have their own regulation also. In Myanmar, like in most countries, when a civil servant commit a crime and sentenced, he is not allowed to re-enter the civil service. The draft law was being prepared, but its contents could not be provided to the Committee of Experts, because draft laws are Official Secrets under the law already explained. Prior to its submission to the Myanmar legislature, the legislation constituted an official secret; however, the Government would be glad to provide a copy of the new law at the appropriate time. In response to the comments of the Worker member of India, he indicated that his Government had full information regarding the person detained, and that the Government was ready to provide this information. He said that there has been a good relationship between India and Myanmar. There are even businessmen to invest in Myanmar. Certain business activities are going on. At the same time, the Worker member of India should write and contact the various employers' and workers' associations that we have mentioned. Regarding the credentials of the Workers' representative from Myanmar, reply has already been made to the Credentials Committee and he quoted letter No. 223/3-20/26 dated 7 June 1999, addressed to the Chairman, and said reference is made in the said letter. He recalled that the ILO was now persuading countries to ratify a number of fundamental Conventions that they had not previously ratified. In this positive atmospshere, it would be unfortunate if one country, such as Myanmar, were singled out unfairly. He cautioned that this would signal a warning to other countries, dissuading them against ratifying additional Conventions.
The Worker and the Employer members requested that this case be mentioned in a special paragraph.
The Committee noted the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade. The Committee could not help but once again deplore the fact that no progress had been made toward the application of this fundamental Convention, despite the repeated calls upon the Government made by the present Committee and the Committee of Experts. The Committee was also once again obliged to express its profound regret that serious divergences between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other hand, continued to exist. It could not help but once again deplore the absence of genuine cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing, to protect their occupational interests and the right to affiliate with federations, confederations and international organizations, without interference from the public authorities. The Committee strongly urged the Government to make, without delay, substantial progress in the application of the Convention, in law and in practice, and urged the Government to supply a detailed report to the Committee of Experts this year.
The Committee decided that its conclusions would figure in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.
Swaziland (ratification: 1978). A Government representative indicated that Swaziland supported the principles that the International Labour Organization stood for, including all the mechanisms that it had put in place to pursue its mandate. His Government was also aware of the obligations that went with its membership of the International Labour Organization, which included taking part in the formulation of and compliance with international labour standards.
He recalled that Swaziland appeared under the paragraph of special cases until June 1998 when, because of progress made in the reformulation of a consensus Industrial Relations Bill, that effort was recognized during the last meeting of this Committee in June 1998. The Government representative made an undertaking that the industrial relations Bill would be passed if possible before Parliament was dissolved later in 1998, thus allaying expressed fears that the Bill would be left in limbo. The Government representative had further indicated that even if Parliament did dissolve, there could be other legal procedures put in place to ensure progress in this regard. The Government representative was pleased to report this year that the Cabinet of Swaziland had debated the Bill, having placed it on top of its priorities, which resulted in the passage and publication of the Industrial Relations Bill No. 13 of 1998 on 5 August 1998. When the Bill was finally approved by the Cabinet, it essentially did not depart from the thematic and philosophical background characterizing the draft which had been submitted by the Labour Advisory Board to the Minister for Enterprise and Employment for his consideration.
The Government representative nevertheless pointed out that as part of the democratic processes of the country, the term of office for the Sixth Parliament of Swaziland had come to an end in August 1998, thereby necessitating that Parliament be dissolved so as to give way to fresh elections. This happened at a time when the Bill was ready for tabling in that legislative body and, in the circumstances, the Bill was submitted for consideration by the Council of Ministers, which was the legislative body that could pass any legislation in the absence of Parliament. The Council of Ministers debated that Bill at length after which, in November 1998, the Prime Minister issued a public statement explaining that when considering the Bill, the Council of Ministers had concluded that due to the importance of the Bill, it had to be considered and passed by a representative Parliament as against the 16-member Council of Ministers. Thus the Bill was deferred to await the new Parliament. After the elections, and soon after the commencement of its business, Parliament made the Bill its priority, such that when the House of Assembly completed the Appropriation Bill, 1999, on 23 April 1999, the Industrial Relations Bill was immediately tabled on 12 May 1999. On 17 May 1999 the House of Assembly agreed that the Bill would be processed for consideration by the Committee of the Full Parliamentary House which started its work in earnest on 24 May 1999, and so far had progressed very well, having gone through and passed more than 30 sections of the Bill already.
The Government representative believed that, considering the few minor changes that had been made by Parliament so far, even if there were any changes introduced, they were not going to be changes that would contradict provisions which were based on the international labour standards which his country had ratified. Furthermore, while he appreciated that it had taken the country longer than hoped to pass a new industrial relations act, he did not believe that this should be equated to a no-progress situation.
Regarding the fear that both the Public Order Act of 1963 and Proclamation No. 12 of 1973 could be used against organizations exercising their bona fide rights as enshrined in ILO Conventions, he pointed out that the Industrial Relations Bill presently being debated by Parliament would adequately address this fear.
The speaker stressed that good progress was being made towards stable and mature labour relations practices in the country. All the social partners were learning how to play their roles so as to effectively promote workers' rights. Where any party went out of line, the industrial court was there to protect the other party (or parties). For example, government employees had recently and successfully taken their employer (the Government) to court over a certain disagreement and the Government had accepted the court ruling. With the passage of the Industrial Relations Bill, labour relations would mature to an extent that all social partners would understand their responsibilities and how those respective responsibilities factored into the overall national and global initiatives.
In conclusion, the speaker reaffirmed that the Industrial Relations Bill no longer represented the sole interests of a particular component of the tripartite formation. Once again he reaffirmed his Government's support for the ILO's objectives and indicated that it would do everything to observe its obligations.
The Worker members pointed out that Swaziland had become a regular customer in this Committee over the last four years for violating Convention No. 87 in both law and in practice. The Committee on Freedom of Association also continued to examine the follow-up to the complaint against the Government of Swaziland by the ICFTU in 1996. During the discussions in this Committee in June 1997, when in fact this case was mentioned in a special paragraph of the report, the Government gave a firm promise to amend the 1996 Industrial Relations Act by August of that year. Not only did it break that promise, but the Act remains in force today. The Act perpetuates restrictions on trade union rights from the 1980 Industrial Relations Act and seriously violates the right to organize and to strike in many respects, and including imposing penal sanctions for legitimate trade union activities, allowing the Labour Commissioner to refuse to register a union if one already exists in the sector, banning federations from calling rallies or mass meetings, and prohibiting a federation or any of its officers from causing, or initiating, the cessation or slow down of work or economic activity upon punishment of imprisonment.
They recalled that in June 1998, the Government was urged to take urgent measures to introduce a newly drafted Bill into Parliament in order to amend the 1996 Act. It was urged to do so before Parliament was dissolved for elections. An amendment Bill had been prepared by a national tripartite committee with the technical assistance of the ILO, yet the Government did nothing. Instead, in July last year, shortly after the June Conference, press reports said that the Government was threatening to pull out of the ILO because the ILO had criticized it for violating basic trade union rights and civil liberties. Harassment of the Swaziland Federation of Trade Unions, the SFTU, and its leaders had not abated. In October 1998, the Commissioner of Labour suspended the SFTU for one month and threatened to deregister it, because the union had not submitted an annual financial report to the authorities -- yet the accounts were in the process of being audited because the SFTU had changed its financial year to end on 30 September. During the same month, the former treasurer of the SFTU, Mxolisi Mbata, died as a result of police brutality in February 1997 after the police had broken up an SFTU general council meeting on the eve of a national stay away. All the executive members had been forced to go to the police station, including the SFTU treasurer, a wheelchair user, who was thrown from his chair and forced to crawl to the police station. They were all locked in a room full of tear gas, until the next day, when they were beaten up and interrogated.
In November, instead of submitting amendments to the 1996 Industrial Relations Act to Parliament, the Government found time to decree the Swazi Administrative Order, known as the Chiefs Bill. This, in fact, amounted to forced labour and enabled village chiefs to order citizens to provide services, namely to weed their fields, under penalty of imprisonment or a fine for denying an order. During the same month, the SFTU General Secretary, Jan Sithole, and another SFTU official, Donald Dlamini, and two others were arrested. They were later released, except Jan Sithole, who was held incommunicado until the next day. The police said that the arrests were in connection with a bomb blast some weeks earlier, although the SFTU had thoroughly condemned it at the time. An official from the SFTU transport workers' union, Patricia Mamba, was arrested later in November when the police raided the union's offices and confiscated equipment. She was not allowed to see a lawyer.
The harassment and intimidation went on in 1999 and the SFTU President, Richard Nxumalo, and the Vice-President, Eliot Mkhatshwa, were arrested and detained on several occasions. Jan Sithole's family received anonymous and threatening telephone calls. On 12 January the Deputy General Secretary, Barbara Dlamini, and the Assistant General Secretary, Zodwa Nkhonta, were arrested and detained for several hours. In March, during collective bargaining negotiations between civil servants, nurses and teachers and the Government, the Minister for the Public Service called a press conference and announced that everyone who wanted a pay increase, should go to his office and sign a form. They would then receive the money. In this way he flagrantly circumvented the union's recognition agreements. This action was roundly condemned in the Industrial Court which ruled fairly and squarely in favour of the unions. In fact the Court said that the Government "had subverted collective bargaining and breached its duty to bargain in good faith". When the three public sector associations tried to hold a protest march, the police announced that they would use everything in their power to make sure that the march did not take place. The 1973 Decree on meetings and demonstrations was used to stop the march from going ahead, despite the fact that the Government has stated on several occasions in this very Committee that the law was of no relevance to trade union organizations. Marching workers were also brutally beaten by police in riot gear. Furthermore, the Worker members stated that the 1973 Decree was used to prevent group submissions being made to the sham Constitutional Review Commission, which was set up in 1996. Only individual submissions could be made, and, owing to a recent decision of the Government, all submissions had now to be made "in camera". In April, the Swazi Parliament called for the General Secretary of the SFTU, Jan Sithole, and the President, Richard Nxumalo, to be deported, on the false allegation that they were not Swazis. This very same argument had been used four or five years ago to intimidate the SFTU leaders.
Finally, as the Minister told this Committee, just before this year's ILO Conference, on 12 May the Government submitted the Industrial Relations Amendment Bill to Parliament. The Worker members indicated that Parliament had now begun to amend the Bill, and they were concerned that a satisfactory piece of legislation might once again be brought into conflict with the Convention. Parliament had announced that it would not rush the Bill because the SFTU boycotted the 1998 elections. Fortunately, a parliamentary motion to defer the Bill to a select committee for review, failed.
The Worker members then pointed out that the industrial relations climate in Swaziland continued to be far from harmonious. The Government had broken its promises to this Committee on several occasions. Both the 1973 Decree and the 1963 Public Order Act remained in force, and had been, and were used, to suppress legitimate trade union activities. The Industrial Relations Act was still in force and the Bill in Parliament, which was agreed upon by the social partners and the ILO, was now being amended.
They recalled that in the conclusions last year, this Committee requested the Government to establish an independent inquiry into the 1995 abduction of Jan Sithole and the 1996 killing of a child, Noxolo Mdluli, during a demonstration. This also has not been done. They, therefore, reiterated the conclusions of this Committee in June 1998, and requested the Government to report progress to the Committee of Experts. The Government had to apply the Convention in both law and practice, and fully respect civil liberties. It had to cease harassment, threats, malicious arrests, intimidation and victimization of trade union leaders.
In conclusion, in the alarming and frustrating circumstances which continued to exist in Swaziland, the Worker members appealed to the ILO to send another high-level direct contacts mission, to follow-up on the 1996 mission. The Workers' group believed that such a mission would be timely, and looked forward to hearing the Government accept this proposal with good will.
The Employer members stated that this case had been discussed several times by the Conference Committee and that a direct contacts mission had taken place in 1996. It related to numerous discrepancies between the 1996 Industrial Relations Act (IRA) and the provisions of the Convention. A national tripartite committee had been established and had agreed upon amendments to be taken to bring the national legislation into conformity with the principles enshrined in the Convention. The lack of detailed information to the Committee, as to the content of this Bill, was of no importance as long as the social partners and Parliament had agreed on the amendments to the legislation. The Employer members noted that the 1973 Decree and the 1963 Act concerning mass actions could result in a disturbance of the peace. Apparently, these provisions had been used in the past to suppress legitimate trade union activities. The Employer members recalled the 1998 conclusions on the case in which the Government had been urged to adopt the Bill to amend the Labour Relations Act before Parliament was dissolved. However, a new Parliament had been installed before this could take place. In this respect they noted the indication of the Government representative according to which the Bill had been submitted to Parliament in May 1999. In conclusion, the Government should be urged to intensify its efforts with respect to the adoption of its legislation which would amend all provisions contrary to those of the Convention. Moreover, the Government should provide full particulars in order to enable the Conference Committee to examine the case again if necessary.
The Worker member of Swaziland reviewed the background of this case as described in Case No. 1884, which was brought before the Committee on Freedom of Association. Following the ILO direct contacts mission, which took place after complaints were raised by workers, the Committee had concluded that the Industrial Relations Act of 1996 was incompatible with the principle of freedom of association and should be amended, giving consideration to the proposals of the Tripartite Labour Advisory Board. The Committee also noted that section 12 of the 1973 Decree, restricting the rights of organizations to hold meetings and peaceful demonstrations, should be repealed. It asked the Government to immediately institute independent inquiries into the death of a 16-year old schoolgirl allegedly shot and killed by the police during a peaceful demonstration, as well as into the abduction of the SFTU Secretary-General, so that the guilty parties could be brought to justice. Further, the Government was requested to ensure that the Public Order Act of 1963 was not used to ban strikes or to oppress legitimate and peaceful strike action. While the Government had promised to address these concerns, there were no concrete results to date. Instead, there were only continued violations, complacency and new decrees that further eroded human dignity and social justice.
He recalled that the Government had made promises to the Committee last year and in certain formal meetings with high-level ILO officials that the Bill would be adopted before Parliament was dissolved. He noted the Government representative's promise, that, even if Parliament were dissolved, the Council of Ministers had a mandate to enact the Bill in the absence of Parliament. Moreover, the Government had promised Swazilanders that the Bill would be given priority immediately following the debate on the budget. None of these undertakings had been fulfilled. In fact, the Bill was only presented to Parliament on 12 May 1999. Moreover, parliamentarians indicated that they would not rush the debate on this Bill, questioning why they should worry about a workers' Bill when workers had boycotted elections held in October 1998.
He made reference to numerous acts of harassment of union leaders that had taken place during 1997 and 1998. This harassment included police raids of union offices and the homes of union leaders, often without search warrants. A number of the incidents described also involved physical violence and threats against the union officers.
Reference was also made to workers' attempts to celebrate May Day. The local government of the City of Manzini had denied workers permission to conduct their celebration on government property. Their celebration was subsequently held on the premises of a private company. Nevertheless, when workers whistled during the celebrations, presumably to express their excitement, the Government and elders threatened to impose criminal sanctions on the workers.
He considered certain Swaziland legislation to be in conflict with the Convention, describing the so-called Constitutional Review Commission (CRC) as non-democratic and non-inclusive with regard to membership and acceptance of submissions. He cited the Media Council Bill, which restricted the right to free expression and free journalism, and the 1973 Decree withdrawing the protection of the Bill of Rights.
He pointed out that the 1973 Decree was regarded as the supreme law of the country. This Decree had usurped the Swaziland Constitution, including the Bill of Rights guaranteed in that instrument, including freedom of expression, association and assembly. In 1996 and 1998, the Committee of Experts had advised the Government that the Swaziland Administration Order of 1950 was not in conformity with the Convention. On 13 November 1998, the Government enacted an order repealing the 1950 legislation. However, he stated that the 1998 Order was worse than the previous legislation it had repealed. He described the 1998 Order as draconian and maintained that it was intended to exacerbate fear and oppression. He stated that the 1998 Order violated basic trade union rights, pointing out that it permitted local chiefs to introduce forced labour and servitude and impose penalties on citizens for non-compliance. The penalties that chiefs could impose included fines, imprisonment, demolition of structures, eviction without compensation and attachment and sale of citizens' property in the event that they failed to pay the fines imposed. The Order also denied citizens the right to representation before the chief's court and provided that no other court had jurisdiction to set aside the chief's orders. He indicated that these "kangaroo" courts were not acceptable and should not be allowed. In his view, the Government clearly wanted to leave the ILO with the impression that the new Industrial Relations Act would bring Swaziland legislation into conformity with the Convention. However, while the other legislation mentioned was still in effect, any new legislation adopted would continue to be undermined. He indicated that, while the Government was making promises to the Committee at the international level, national laws were being promulgated that undermined those promises. He pointed out that Swaziland had ratified ILO Conventions and was, therefore, internationally accountable with regard to the practical application of those Conventions. He, therefore, called for the Government to bring its legislation into conformity with Convention No. 87 and implement its provisions in law and practice.
The Employer member of Swaziland joined the previous speakers in expressing his regret at the delays in adoption of the Bill. However, he maintained that he still believed progress was being made. He noted that the Bill had gone to Parliament in less than two weeks and believed that the Bill would in fact become law by the end of the year. The amendments proposed so far did not materially affect the agreements made with the social partners. Recognizing that the Government may not have performed well in the eyes of the ILO in the past, he nevertheless expressed his view that the Government needed to be encouraged at this time. He pointed out that it would not be helpful to lambast the Government representative. Instead, he urged the Committee to send a message asking the Government to speed up the adoption of the proposed Bill.
The Worker member of the United States expressed his full support of the comments made by the Worker members, as well as by the Worker member of Swaziland. He noted that the AFL-CIO had submitted a petition to the US Trade Representative's Office, requesting that certain trade privileges currently enjoyed by Swaziland under the US Generalized System of Preferences (GSP) programme be suspended due to its systematic violation of workers' rights. The petition had indicated that the Government's enactment of the draft labour law was the primary measure that should be used to determine whether Swaziland was taking steps to respect basic worker rights and whether it should, therefore, retain its GSP privileges. Given the assurances of the Government representative last year, it was anticipated that the new labour law would now be in place. He expressed his regret that this had not occurred and that the Government had displayed a lack of urgency in introducing the legislation in Parliament. Accordingly, the AFL-CIO would submit supplementary information to the US Government expressing its disappointment at the lack of progress in this regard and renewing its request that Swaziland's GSP privileges be suspended due to its systematic violation of worker rights.
The Worker member of South Africa recalling the strong political, economic, social and cultural ties existing between his country and Swaziland, which justified that the developments in the latter be followed very closely, supported the views expressed by the Worker members. He took note of the information provided by the Government and the commitments made to bring labour legislation in line with the provisions of the Convention. He observed, with some scepticism, that these statements were the same as those made by previous labour ministers over the past five years, without any noticeable practical progress. He insisted on the fact that the extent to which a country complied with the provisions of the Convention could be said to be a measure of how it respected civil liberties, including and in particular, freedom of association. He insisted on the importance that the 1996 Industrial Relations Act, the 1973 Decree and the 1963 Public Order be amended and/or repealed.
The Employer member of South Africa welcomed the Minister's report that the Industrial Relations Bill was presently before Parliament and expressed his appreciation of the Minister's personal efforts to expedite the passage of the Bill. The drafting of this Bill by a tripartite committee with the assistance from the International Labour Office was an important step in bringing labour law in Swaziland into conformity with international standards. He regretted that the Government had been unable to secure the adoption of the Bill before the dissolution of the Parliament last year, as urged by the Committee of Experts and this Committee. However, until this Bill had been adopted and promulgated the present case could not be regarded as having been brought to a successful conclusion. He noted, with concern, however, that the alignment of Swaziland's laws with its international obligations, did not appear to enjoy a particularly high priority or urgency. Reports in the Swaziland press indicated that at least some degree of delay in the legislative process was apparent. As recently as 15 May 1999, a report was published which referred to statements by Members of Parliament that this issue was not pushed because the unions did not participate in the elections last year. This report, as well as a recent report of calls by a Member of Parliament for the deportation of the President and founder of the Swaziland Federation of Trade Unions, were not conducive to a climate in which an expeditious resolution of this matter could be found. The speaker noted, however, that progress was always welcome and he acknowledged that since last year's discussion there had been some progress, but this Committee would not yet record a satisfactory outcome.
The Government representative thanked the members of the Committee for their comments. Taking note of the issues raised, he indicated that his Government was making all efforts to ensure that progress was made. It was willing and prepared to sit down with the social partners to resolve these issues. He indicated that the concerns raised by the Employer member of Swaziland had been referred to the Labour Advisory Board but that, since the Board's report had not yet been received, it could not yet determine the best manner in which to proceed. With regard to the issue raised by the Worker member of Swaziland regarding whistling during the May Day celebrations, he indicated that he did not expect the Committee to understand the full implications of this incident, but that he hoped that the social partners could resolve this issue in Swaziland. He reiterated his appreciation for the concerns raised and assured the Committee that he was doing everything possible to proceed with the adoption of the Bill.
The Worker members appreciated that the Government was attempting to move forward in the direction recommended. However, they requested the Government representative to respond to the comments raised regarding the appropriateness of a direct contacts mission.
Responding to the query of the Worker members, the Government representative of Swaziland indicated that, as a Government, Swaziland had not yet seen the need for a high-level contacts mission. It had extended an invitation to the ILO to visit Swaziland; however, if the Committee concluded that it was necessary for a high-level ILO mission to come to Swaziland, the Government would abide by that decision.
The Employer members could not accept the proposal by the Worker members for a direct contacts mission as the parties concerned had already agreed to introduce changes into the legislation and all that remained was for them to be adopted by Parliament. The question of the mission could be discussed the following year in the light of developments in the case and the information to be given by the Committee of Experts. The Employer members did not object to the request by the Worker members that the present meeting of the Committee reaffirm its conclusions of the previous year on investigations relating to certain acts of violence.
The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It recalled with concern that this case had been discussed by the Committee in 1996, 1997 and 1998. It recalled that the Committee of Experts had raised concerns about numerous provisions of the 1996 Industrial Relations Act which considerably limited the right of workers' organizations to organize their activities without interference from the public authorities in contravention of Articles 2 and 3 of the Convention. It regretted that no amendment regarding this legislation had yet been adopted. It further recalled with regret that the Committee of Experts had observed that the 1973 Decree on meetings and demonstrations placed important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and that the 1963 Public Order Act had been used to hinder legitimate trade union activities. Last year the Committee had welcomed the Government's indication that a new Industrial Relations Bill had been drafted, in consultation with the social partners and with the assistance of the ILO, with a view to bringing legislation into conformity with the Convention. Deeply regretting that this new Bill had not been adopted before dissolution of Parliament, it once again strongly urged the Government to take the necessary steps to adopt this Bill and to ensure that the 1973 Decree and the 1963 Public Order Act did not interfere with the rights of workers' organizations to organize their administration and activities and to formulate their programmes. The Committee expressed the hope that the Government would establish independent inquiries into the abduction of the Secretary General of the Swaziland Federation of Trade Unions and the killing of a child during a demonstration. It asked the Government to fully respect the civil liberties essential to the implementation of the Convention. The Committee also urged the Government to supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity with the Convention, both in law and in practice.
Venezuela (ratification: 1982). A Government representative of Venezuela, responding to the observations by the Committee of Experts in connection with the Convention concerning Freedom of Association and Protection of the Right to Organise (No. 87), stated that the reform of the State and its institutions did not foresee in the short term any amendment to labour legislation other than the modification of the comprehensive social security system and its subsystems. This reform had been adopted by the Congress of the Republic in an Enabling Act published in the Official Gazette No. 36,687 of 26 April 1999 and would allow the President of the Republic to take extraordinary economic and financial measures for reasons of public interest during a period of six months. He drew attention to point 4(a) of the aforementioned Enabling Act, which referred to the sectoral economic context and provided the following: "To reform the Organic Comprehensive Social Security Act, and the legislation on the health, pensions, housing and redundancy subsystems, in order to include appropriate protection mechanisms for the various social sectors, ensure state monitoring and supervision of the funds, and take into consideration the financial economic impact".
He stated that the drafting of a new Constitution was foreseen which it was hoped would strengthen the bases of the rule of law with a legal structure that would allow the exercise in practice of real social and participatory democracy, adapting the institutional framework and making the State subject to the pre-eminence and primacy of its citizens.
The Government representative added that when the Constituent National Assembly met in early August 1999 the international treaties and agreements signed by Venezuela concerning the fundamental rights of workers and democratic guarantees would be put into effect. The commitments undertaken by the Government would be fully respected, tripartism would be reinforced and social dialogue fostered, as called for in the accord of 12 May 1998. The accord constituted a legacy that the present Government would not discount and established a mechanism for restoring the legitimacy of the actors concerned indicative of the country's present political situation. He emphasized that it was important to underline the declared intention of the workers to reform their statutes so as to support the changes and transformation currently taking place in Venezuela.
In connection with the observations of the Committee of Experts concerning Articles 2 and 3 of the Convention, he emphasized that the Government's policy had not been, and would not be, to disregard the commitment undertaken when ratifying the Convention. He drew attention to the manner in which the representation made by FEDECÁMARAS had been dealt with through the signature of the aforementioned tripartite accord of 12 May 1998. The accord called for the elaboration of the necessary instruments to bring national legislation and practice into conformity with the requirements of the international labour Conventions ratified by Venezuela. Although the ad hoc committee responsible for putting the proposal into effect had not yet been appointed, that did not mean that the commitment was being disregarded, rather that there had been delays due to the elections in the second half of 1998.
The decision to transform the State had initiated a revision of the former legislative practices without changing the spirit and rationale for tripartite dialogue. The commitments undertaken pursuant to the ILO's Conventions and Recommendations, particularly Convention No. 87, would thus be met in order to respond forcefully to the representation made by the employers' sector in 1992.
He reiterated that it was not the Government's intention to ignore tripartism as a fundamental principle for social dialogue, but rather to extend it. That had been the case in the most recent discussions that had led to a minimum wage adjustment of 20 per cent as from 1 May 1999 with the participation of other actors representing workers who had previously asked to take part in the negotiations.
Lastly, he stated that the discussion on employment and social security was still pending. It would help to reaffirm tripartism as the fundamental element of social dialogue.
The Employer members noted the statement made by the Government representative and indicated that it was a statement to which they would have liked to heartily subscribe; however, they were aware that in reality the situation was very different. They recalled that the Committee had previously examined the country's non-compliance with both Conventions Nos. 87 and 98, and that the last time this case had come before the Committee, the Government representative had expressed his displeasure at having to address the Committee on this matter, particularly since this had been initiated by the Employer members. In this regard they referred to the fact that the substantive provisions of the Convention clearly apply to both workers and employers, and emphasized that there had been violations of this Convention affecting both workers and employers in the country.
The Employer members expressed regret that the Government had provided no specific information concerning whether or how the limitations on these rights would be removed. They referred to the points that had been raised by the Committee of Experts: (i) the requirement for an excessively long period of residence for foreign workers to hold trade union office; (ii) the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations; (iii) the requirement for an excessively high number of workers in order to form self-employed workers' trade unions; (iv) the requirement for an excessively high number of employers needed to establish an employers' organization. It was clear, in their view, that there had been significant state intervention in violation of the right of workers and employers to freely associate. They noted with concern that although the Government had expressed its disagreement with the comments that the Committee of Experts had been making for a number of years, the Government representative had before this Committee made a commitment to take the necessary measures to comply with the requirements of the Convention. They also expressed regret that the Government had not in the past adhered to commitments to undertake tripartite consultations and pointed in particular to the fact that the 1990 Organic Labour Act had been adopted in the absence of tripartite consultation.
They also referred to a representation under article 24 of the Constitution that had been submitted by the Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECÁMARAS) in 1992 which also raised the issue of the lack of tripartite consultation in formulating legislation. The Governing Body had referred the matter to the Committee on Freedom of Association which adopted a number of clear conclusions and recommendations in Case No. 1612, calling for, inter alia, the Government to amend the Organic Labour Act in consultation with workers' and employers' organizations. They observed that six years after these recommendations had been adopted, the legislation had still not been amended nor had tripartite consultations been undertaken. They also lamented the attitude of the Government concerning other matters, particularly the repeated refusal to send a tripartite delegation to Geneva. In their view this again illustrated the Government's lack of commitment to tripartism. They requested the Committee to note the various criticisms that had been levelled at the Government on previous occasions and to urge it to consult with the most representative organizations.
The Worker members recalled that the case had already been discussed in 1995, 1996 and 1997 as a result of several discrepancies between the legislation and Convention No. 87 concerning the establishment, the functioning and the objectives of employers' organizations, and self-employed workers' organizations. Freedom of association was as much a fundamental right for workers' organizations as for employers' organizations. Venezuelan legislation required a specific number of employers to establish an employers' organization. According to Convention No. 87 and the positions adopted by the supervisory bodies such restrictions should be determined by the constitutions and rules of these organizations. A distinction should be made between the question of establishing organizations and that of the most representative organizations. Moreover, Venezuelan legislation required an excessively long period of residence (more than ten years) before a foreign worker could become eligible for appointment to hold office in a workers' or employers' organization. The Worker members had already criticized the restrictions with respect to nationality during the discussion on the General Survey on migrant workers. The list of duties and aims to be achieved by workers' and employers' organizations was too long and detailed.
In 1996 and 1997, following a difficult period with regard to the social and economic situation and social dialogue, the Government informed the Committee that it was prepared to participate in tripartite consultations and reiterated this commitment today. It also stated that a change of policy by the new Minister of Labour was expected. National workers' and employers' organizations in Venezuela had, in fact, confirmed that the new Minister appeared to be willing to undertake tripartite consultations. They expressed the hope that these good intentions would be translated into actions. On the eve of the 1998 Conference, the Government stated that a tripartite agreement had been signed on 12 May 1998 to establish, within two months, an ad hoc tripartite committee, which would be responsible for drawing up the necessary instruments to bring national legislation and practice into conformity with the requirements of Convention No. 87. Since that statement was issued, the Government had not indicated whether any real progress had been achieved. On the contrary, the report of the Committee of Experts referred to observations made by the Government to the effect that it disagreed with the comments which the Committee had been making for a number of years.
The Committee of Experts and the present Committee had requested the Government, on several occasions, to amend its Organic Labour Act without delay. The Government had expressed its intention to do so on numerous occasions and again reiterated this intent during the present Conference but had not respected its promises. The Worker members were of the view that the Government should assure the Committee that it would respect the promises made and that concrete measures would be taken. The Government should also provide the ILO with full and complete information in this regard.
The Worker member of Venezuela stated that the tripartite agreements mentioned by the Minister of Labour were advantageous for workers, for employers and for the Government. He added that far-reaching changes were taking place in Venezuela, including the drafting of a new Constitution, and he expressed the hope that the international agreements signed by the Venezuelan Government would be taken into account. Threats continued to be made, however, against trade unions and employers' organizations. He concluded by stating that the trade union structure was also changing and had reformed its electoral process.
The Government representative stated that the Government was willing to resolve the issues mentioned by the Worker members and to reinforce social dialogue. Serious consideration was being given to legislative reform with a view to drafting the new Constitution. In that connection, the proposals made by the Committee since 1993 would be taken into account. Information on the measures to be adopted would be provided. He asserted that the remarks of the Worker member of Venezuela were not serious because there had been no representations to the ILO regarding persecuted leaders, the closure of trade unions or businesses being confiscated. Lastly, he said that it was the Government's intention to move ahead with the policies initiated and reflected in the agreements referred to previously.
The Committee took note of the statement made by the Government representative and the discussion which took place thereafter. The Committee recalled that it had discussed this case over the last five years and that the Government had given assurances that an ad hoc tripartite committee would undertake to draw up legislative amendments to bring national legislation and practice into conformity with the requirements of the Convention. The Committee expressed the firm hope that in this context, the Government would consult with both employers' and workers' organizations as promised during the discussions. The Committee regretted the lack of progress made in this regard. The Committee, like the Committee of Experts, insisted on the need to remove the discrepancies between the legislation and Articles 2 and 3 of the Convention, and to lower the number of employers and workers necessary to form organizations of employers and self-employed workers, respectively; to remove the requirement of a ten-year residency period in the country for foreign workers to stand for office; to remove the long list of duties imposed on employers' and workers' organizations so as to ensure that employers and workers without distinction whatsoever could form their organizations freely, and that these organizations could elect their representatives in full freedom and carry out their administration and activities without interference from the public authorities.
The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity in the very near future with the requirements of the Convention, in law and in practice.
Convention No. 95: Protection of Wages, 1949
Russian Federation (ratification: 1961). The Government has supplied the following information:
Information on the payment of wages to workers in the budget-supported sector of the constituent territories of the Russian Federation
On 1 May 1999, according to the State Statistics Committee of the Russian Federation, total wage arrears resulting from shortfalls in budget financing at all levels and in funding from organizations' own resources amounted to 16,348 million roubles. Of that total, 12,088 million roubles were attributable to shortfalls in budget funding at all levels.
In comparison with the previous month's indicators, total wage arrears fell by 1,578 million roubles (8.8 per cent). Of that total 1,401 million roubles (10.4 per cent) were attributable to shortfalls in budget funding at all levels.
The proportion of shortfalls in budget financing was 19.6 per cent of the federal budget and 80.4 per cent of the territorial budgets.
In the social sector, arrears attributable to shortfalls in funding from the federal budget fell in 57 constituent territories and from the territorial budgets in 68 regions.
On 1 May 1999, outstanding wage arrears paid from the federal budget had been liquidated in the Nenetsk, Evenkij, Aginski Buryatsk and Koryaksk autonomous regions, and virtually liquidated in the Republic of Dagestan, the Belgorodsk district and the autonomous regions of Tajmyrsk and Yamalo-Nenetsk. In the Republics of Kabardino-Balkarsk, Tyva, Marij-El, Altaj, the districts of Vologodsk, Bryansk, Kostromsk, Tambovsk, Orlovsk and Smolensk and the autonomous region of Komi-Permyatsk wage arrears range from 0.2 to 0.6 million roubles.
Approximately 46 per cent of the total outstanding wage arrears resulting from shortfalls in the federal budget are attributable to Moscow (239 million roubles), the Moscow district (152 million roubles) and St. Petersburg (146 million roubles).
On 1 May 1999, wage arrears in the social sector resulting from shortfalls in the territorial budgets were recorded in all the constituent territories of the Russian Federation. However, outstanding wage arrears fell in 68 regions. The greatest proportion of outstanding wage arrears resulting from shortfalls in the territorial budgets in the social sector are to be found in the Republics of Saha (Yakutia -- 462.2 million roubles), Krasnoyarsk Krai (675.5 million roubles), and the districts of Kemerovsk (647 million roubles), Tumenesk (454.6 million roubles), Sverdlovsk (419.8 million roubles) and Irkutsk (464.2 million roubles).
The federal Government, in collaboration with the Executive of the constituent territories, is implementing measures to ensure the payment of current wages and wage arrears to workers in the budget-supported sectors. In the first quarter of 1999, timely transfers and temporary financial assistance disbursed from the federal budget reduced outstanding wage arrears to these workers from 16,517 million roubles to 12,088 million roubles. At the same time, over half the regions met current wage payments from their own resources.
Report of the Russian Labour Inspection Services (1998)
In 1998, the Russian Labour Inspection Services (Rostrudinspektsiya) carried out supervisory and inspection visits to ensure compliance with labour legislation, employment protection and workers' rights.
As a result of 264,000 government labour inspections carried out, over 2 million flagrant violations were discovered and eliminated and workers' rights restored to hundreds of thousands of workers. The severity of the problem of ensuring compliance with workers' rights has been corroborated by statistics issued by the Russian Ministry of Justice which show that, in 1998, over 1.4 million labour disputes were brought before the courts, approximately 97 per cent of which were recognized as founded and resolved.
In 1998, the Labour Inspection Service carried out more than 45,000 inspections of organizations following widespread wage arrears and the ensuing acute social repercussions. These inspections revealed more than 32,000 violations of wage legislation. Over 35,000 court orders were subsequently issued and the total sum of wage payments made to workers amounted to 9 billion roubles compared to 7.7 billion in 1997 and 6 billion in 1996.
One in four inspections took place in the budget-supported sector at all levels. As a consequence of demands made by the Labour Inspectorate and the implementation of other measures, workers in these sectors received payment of wage arrears amounting to more than 1.2 billion roubles.
The Labour Inspectorate together with the prosecutor's office, the tax inspectorate, the tax police, labour agencies, the federal treasury and the Russian Ministry of Finance carried out over 5,000 inspections during the course of which measures were adopted to halt the violation of wage legislation by employers and the misappropriation of funds allocated from the federal budget for the payment of wages.
These measures have led to the liquidation of wage arrears in Voronezh (61.4 million roubles), Kursk (85.8 million roubles) and Novosibirsk (93.2 million roubles) districts in Algarsk Krai (20.9 million roubles), Krasnodarsk Krai (81.8 million roubles), and the Republics of Karelia (11.7 million roubles) and Buryatia (12.4 million roubles).
The inspections have revealed that many employers resort to withholding wages as a means to resolve their financial problems at the expense of the government or their own workers.
The Labour Inspectorate fined over 6,400 employers and heads of organizations 4.4 million roubles for blatantly violating wage legislation and misappropriating funds allocated from the budget for the payment of wages.
Preventive measures and possible legal sanctions against those found guilty of violating wage legislation are practically non-existent in Russia since the Criminal Code in force does not envisage criminal or legal responsibility for these violations.
Wage arrears, low wages and underemployment have provoked a sharp increase in secondary and informal employment. Experts estimate that in 1998 approximately 8 million workers held second jobs with 7.5 million workers employed in the informal sector. For those employed in the informal sector this was their only source of income. This has led to widespread violations of labour legislation. Moreover, wages earned in the informal sector do not contribute to the budget or the social fund which has exacerbated the already difficult economic situation in Russia.
The fundamental reasons for the widespread violation of workers' rights are:
- the absence of appropriate economic, organizational, and legislative mechanisms which encourage effective economic management and respect for legislation;
- the extremely slow rate of economic restructuring, the modernization of enterprises to increase competitivity, the avoidance of bankruptcy procedures by enterprises who are no longer creditworthy, and the fall in production of enterprises and organizations;
- popular social policies of several branches of the administrative and regional powers to increase wages and social benefits have been concluded with trade unions and are unrealistic in light of the economic possibilities of the constituent territories;
- the delays in drawing up effective legal and administrative procedures to ensure realistic and responsible representation of government interests in joint-stock companies which receive government funding to ensure regular payment of wages by employers in these government and municipal joint-stock enterprises;
- inappropriate implementation of internal agency and regional controls to ensure compliance of labour legislation and employment protection by federal, regional and local government; also, the overall absence of a conceptualized, developed and complete system of governmental controls in Russia;
- the delay in introducing legislation to regulate working conditions in the changing economic climate. Many regulations within the existing Labour Code hinder the normal development of modern industrial relations while at the same time impairing its protective function. The time is ripe to: (i) introduce a new Labour Code which will optimize labour legislation; (ii) guarantee the coordination of individual agreements, collective agreements, and central government regulation of industrial relations; (iii) define objective and essential legal and economic guarantees for workers; (iv) strengthen sufficient and accountable legislation through international instruments to guarantee the compliance and respect of the rights and freedom of workers.
Bearing in mind the above, and with a view to ensuring compliance with legislation relating to labour, health, safety and improving protection of labour rights of citizens of the Russian Federation, the Government considers it necessary to do the following:
- To speed up the process of enacting legislation relating to state supervision and monitoring of compliance with labour, health and safety legislation, the necessity of which was confirmed by Presidential Decree No. 850 of 5 May 1994 and Federal Act No. 109-FZ of 18 July 1995.
- To examine and adopt without delay the new draft Labour Code which the Government has submitted to the State Duma.
- To take the necessary measures to ensure effective administration of treasury-controlled and other state undertakings and financial control over their activities, to strengthen the regulatory power of the State in the matter of payment of wages and improving accountability of managers of state undertakings and municipal undertakings in which the State is involved.
- To develop a system of effective monitoring of financial and economic activities and formulate measures to create a legal framework for the activities of state officials in management bodies of joint-stock companies, to ensure that they are accountable for poor management of any State-owned interest.
- To take measures to ensure that owners of socially important facilities are legally accountable for any use of such facilities which is socially harmful (principle of responsible ownership).
- To oblige State authorities at all levels, when formulating and adopting general sector (wages) and occupational agreements with trade unions at national (federal) and regional levels, to establish in those agreements only pay levels and social benefits which are not beyond the means available to the parties and do not result in a deterioration in the economic situation of individual organizations, branches, or the country as a whole.
- To provide the necessary funding for the material and equipment required to: (i) implement manufacturing safety measures for the protection of workers; (ii) for the research needed for this; and (iii) to encourage the establishment and development of health and safety departments in executive bodies, local authorities and organizations.
- To speed up the unduly long and drawn-out process of finishing and adopting a Public Service Code which is intended to systematize and improve provisions relating to the rights, obligations and accountability of public officials.
- In accordance with international obligations arising from the ratification by Russia of the Labour Inspection Convention, 1947 (No. 81), and the Protocol of 1995, to decide as a matter of urgency whether to confirm the de facto status of the Labour Inspectorate Rostrudinspektsiya as the state authority responsible for carrying out special supervisory, monitoring, licencing and other functions relating to the implementation of labour, health and safety legislation, and whether to extend legislation concerning the federal public service to cover Rostrudinspektsiya employees.
The Government has included an appendix with the Report of the Inspection Service of the Russian Federation (Rostrudinspektsiya) concerning inspections carried out to ensure compliance with the legislation on the payment of wages (as of 1 April 1999).
In addition, a Government representative addressed the Committee on the question of compliance with wage legislation and wage arrears in the constituent territories in the Russian Federation. He stated that the social and economic situation in the Russian Federation remained acute. In the first semester of 1998 efforts had been undertaken to stabilize the situation facing the currency and stock markets to resolve the serious problems facing the federal budget. In August and September of 1998, there had been a severe economic crisis which had led to a sharp devaluation of the rouble, an explosion in prices, and a significant worsening of living conditions. From 1998 onwards, extraordinary measures had been adopted to overcome the results of the crisis, to stem the flow of the negative economic and social consequences resulting therefrom, and to partially compensate the population for loss of revenue. In March and April 1999, the Russian economy had begun to show signs of recovery. The most significant result of this period was that the Russian Government had avoided more serious developments in the economic crisis, such as hyper-inflation, trade deficits, panic-buying in the consumer goods market, a further drop in the rouble exchange rate, a deepening of the recession and social explosion. He said that following the crisis of August-September 1998, overall, the economy had adapted to the situation. This was the result of measures implemented to regulate the balance of payments, support the manufacturing sector, resolve the more acute social problems, and increase the stability of the rouble. At the same time, the consequences of the crisis had not been fully eradicated. There remained serious budgetary difficulties, particularly with regard to servicing the Government's foreign debt. There also remained a serious financial crisis in the manufacturing sector. The dependency of the economy on external factors was also perceptible and difficulties remained in resolving the question of servicing and liquidating the Government's foreign debt. In the social sector the situation was far from satisfactory. In 1999, the population's real disposable income had dropped 75 per cent on the previous year and wages had fallen in real terms approximately 60 per cent. The average per capita income and monthly wage was less than US$55 and the average pension was now less than US$20. In the first quarter of 1999, 55 million (38 per cent) of Russians received less than the minimum subsistence wage. The overall decrease in the real disposable income had led to a change in consumer spending and saving with approximately 85 per cent of revenue being spent on consumer goods and services. The Russian labour market had suffered significantly as a result of the negative consequences of the crisis, registering a gradual drop in the demand for labour. Overall, unemployment had reached worrying proportions. Almost 9 million workers (12.4 per cent) of the economically active population were unemployed (calculated according to ILO indicators). The number of unemployed registered with employment offices had now reached 1.9 million workers (2.7 per cent) of the economically active population. The Russian trade union organizations endorsed the Russian Government's serious concerns with regard to the situation facing employment and wage arrears. In this difficult social and economic climate, the Government representative said that every effort had been made to fight the negative consequences of the crisis on the Russian population. Wages in the budget-financed sector had increased 1.5 times, benefits had been paid to pensioners, and government pensions had increased 12 per cent. The Government had implemented significant measures to liquidate arrears in wages, pensions and benefits, and currently wages in the budget-financed sector and pensions were being paid on time. At the same time, existing resources had not enabled the full consequences of the crisis to be eradicated.
The Government member stated that the most important task facing the Executive would be to increase the effectiveness of allocating resources to social needs. In an acute economic climate, social policy should be developed to address a set of priorities and gradually to resolve social problems, in accordance with the Government's obligations and the real possibility of financing these obligations. The adoption of a series of measures had been envisaged to improve the form and methods of payment of wages, to stabilize and increase the living conditions of the population, and the purchasing power of the consumer. In particular, measures to fundamentally reform the payment of wages in the private sector and to introduce recommended wage scales were being drawn up within the framework of agreements between employers' and workers' organizations. The further improvement of the payment of wages in the budget-financed sector should take the following directions: the application of a uniform pay scale within an obligatory system of wage payments in the budget-supported sector at the federal and constituent territories' levels and within municipal education systems; the maintenance and development of a uniform pay scale, according to responsibility and profession dependent upon the complexity of the work involved and the qualifications of the worker; the definition of the principles of the scale and sub-scale sections, and the development of principles which establish a fund within the budget for the payment of budget-sector wages at all levels.
Such is the situation facing payment of wages in the budget-supported sector. On 1 May 1999, according to the State Statistics Committee of the Russian Federation, total wage arrears resulting from shortfalls in budget financing at all levels and in funding from organizations' own resources amounted to 16,348 million roubles. Of that total, 12,088 million roubles were attributable to shortfalls in budget funding at all levels. In comparison with the previous month's indicators, total wage arrears fell by 1,578 million roubles (8.8 per cent). Of that total 1,401 million roubles (10.4 per cent) were attributable to shortfalls in budget funding at all levels. The proportion of shortfalls in budget financing was 19.6 per cent of the federal budget and 80.4 per cent of the territorial budgets. In the social sector, arrears attributable to shortfalls in funding from the federal budget fell in 57 constituent territories and from the territorial budgets in 68 regions. On 1 May 1999, outstanding wage arrears paid from the federal budget had been liquidated in a number of regions. Approximately 46 per cent of the total outstanding wage arrears resulting from shortfalls in the federal budget were attributable to Moscow (239 million roubles), the Moscow district (152 million roubles) and St. Petersburg (146 million roubles). On 1 May 1999, wage arrears in the social sector resulting from shortfalls in the territorial budgets were recorded in all the constituent territories of the Russian Federation. However, outstanding wage arrears fell in 68 regions.
The federal Government, in collaboration with the Executive of the constituent territories, stated that measures were being implemented to ensure the payment of current wages and wage arrears to workers in the budget-supported sectors. In the first quarter of 1999, timely transfers and temporary financial assistance disbursed from the federal budget reduced outstanding wage arrears to these workers from 16,517 million roubles to 12,088 million roubles. At the same time, over half the regions met current wage payments from their own resources. The Government representative had once again stated that it intended to meet 50 per cent of all outstanding wage arrears from the federal budget and the remaining 50 per cent would be met through local government budgets.
The Government representative said that the Labour Inspectorate together with the prosecutor's office, the tax inspector and the tax police were continually carrying out wide scale inspections to ensure compliance of wage legislation and the appropriation of funds disbursed from the budget for the payment of wages. From 1 January 1999 - 1 April 1999, the Labour Inspectorate carried out over 11,000 inspections to ensure compliance with wage legislation, which resulted in over 7,000 violations being brought to light. Following inspections carried out in the administrative departments of enterprises and organizations, over 8,000 injunctions were issued to eradicate violations of wage legislation and, as a result of demands made by the Labour Inspectorate and other measures taken, workers received payment of wage arrears amounting to 2.2 billion roubles. Government inspectors, together with territorial sectoral trade union organizations, had also continued to carry out arbitrary inspections to ensure compliance with wage legislation. Employers who were found guilty of blatantly violating wage legislation and misappropriating budgetary resources were called to account by the Labour Inspectorate. As of 1 April 1999, the Labour Inspectorate had issued fines amounting to 1,246,000 roubles to 1,489 employers, including 178 employers in the budget-financed sector.
The Government representative stated that on 17 February 1999 an amendment to the Criminal Code of the Russian Federation had been passed by the Duma. Article 145 of the Criminal Code of 17 February 1999 relative to the non-payment of wages, pensions, grants, allowances and other benefits provides that:
- The owner of any enterprise, foundation or organization, irrespective of the form of ownership, found guilty of withholding the payment of wages, pensions, grants, allowances and other benefits for the purpose of profit-making or self-interest for a period exceeding two months: shall be subject to the imposition of a fine ranging from 100 to 200 times the minimum wage or other form of wage payment or income for a period of one to two months, or barred from holding a particular position or fulfilling a particular responsibility for a period of up to five years, or imprisonment for a period of up to two years.
- For the same activities, entailing serious consequences, the convicted person: shall be subject to the imposition of a fine ranging from 300 to 700 times the minimum wage or other form of wage payment or income for a period of three to seven months, or barred from holding a particular position or fulfilling particular responsibilities for a minimum of three years to an indefinite period.
The Government representative concluded by stating that the Russian Federation fully understood the importance of Convention No. 95 and was taking the necessary measures to ensure the respect of and compliance with this Convention.
The Worker members thanked the Government representative for the information provided. They recalled that this case had been discussed in 1995 and 1998, but that because of a representation made under article 24 of the Constitution, the case was not discussed in 1997. They noted that the Government had provided neither the detailed report requested by the Committee of Experts, nor the additional information set out in its conclusions. The written information supplied by the Government was fragmented and did not permit an overall view of the prevailing situation. While noting that the Government had announced different measures taken and laws adopted, the Worker members regretted that this information was provided so late since, as a result, it could not be submitted to an in-depth and detailed analysis. The Worker members recalled that detailed information of all measures taken and results obtained had been requested; this information should have included statistical data as well as a fixed schedule for payment of arrears. Moreover, the Government had not responded to the request for information on other provisions of the Convention such as Article 4 concerning payment in kind, the treatment of wages as privileged credit in the case of bankruptcy, sanctions, etc. Finally, the Government had not responded to comments made by the Russian trade union organizations. The Worker members considered that this lack of response was contrary to the statements made the previous year by the Government representative that had highlighted the willingness of his country to cooperate in a constructive manner with ILO supervisory bodies. The Worker members insisted that Russian workers, both in the public and private sectors, were confronted with major problems concerning arrears in salary. Although the ILO supervisory bodies had formulated their conclusions in this regard on several occasions, the problem was far from resolved. The Worker members were very concerned about the situation in which millions of workers and their families were found. According to information provided by various Russian trade unions and by the Government last year, the total amount of arrears had risen to tens of billions of roubles. Additional information had been received from Russian trade unions. For example, in January 1999 teachers had engaged in a strike in 6,218 schools and scientific institutions. More than 2,000 men and women had been mobilized on that occasion. It seemed that the amount owing to the workers concerned could be estimated at US$665 million. Added to this were arrears in pension and social security contributions amounting to US$243 million. In response to these measures, the Government had repeated its promises. The Worker members recalled that significant action had also been undertaken by workers in the mining, industrial, social and railway sectors. The Worker members, like the Committee of Experts, considered that the situation seemed to be worsening rather than improving. While taking into account the information provided by the Government representative, the Worker members insisted on the importance of analysing the statistics that had been presented in order to verify the situation precisely. However, it appeared that the amounts referred to were not very high if compared to the total amount of debts, estimated to be tens of billions of roubles. The Worker members also noted that the 75 draft federal laws concerning payment of wages had not yet been adopted by Parliament. They insisted that all of the Russian authorities, both at the federal and regional levels, should take decisive and concrete measures and action in this regard. Moreover, the Government should honour the commitments that it had made.
The Worker members recalled that the previous conclusions of the Committee had been very severe, and they insisted on the importance of making as precise and concrete conclusions as possible. They requested that the Government truly commit itself to put an end to significant contraventions of the Convention, and that measures be taken so that workers would be paid on time and paid arrears owing, both in private and public enterprises as well as in service sectors such as health care, teaching and government administration. The Worker members insisted that the Government implement effectively the recommendations of the tripartite committee adopted by the Governing Body following its recommendations made under article 24 of the ILO Constitution. The Worker members requested that the Government provide to the ILO, within the appropriate time period, detailed information on monitoring, sanctions, payment of arrears, legislation and measures taken to prevent the misappropriation of funds reserved for the payment of salaries. The Government should provide precise details of results obtained and concrete and specific measures taken in this regard. The Worker members also asked that the Government provide detailed information on the other provisions of the Convention such as prohibition of payment with promissory notes or coupons, payment in kind, etc. The Worker members concluded by insisting that the supervisory bodies should follow developments closely in this case. The Committee should be in a position to return to this case in a future session if no progress was noted in the meantime.
The Employer members noted that this case had been addressed by ILO supervisory bodies since 1995, including the Governing Body in November 1997 which had made appropriate recommendations. They fully appreciated the problem of remunerating workers within the context of the country's current economic difficulties. Notwithstanding the indications given by the Government representative of its efforts to address the problem, they noted that he had made no reference to the adoption of draft presidential decrees and orders that had been referred to before the Committee last year. For this reason, they asked whether there had been a subtle pull-back in efforts by the Government to ensure payment of arrears during the past year. Differences between the written information and the statement of the Government representative before this Committee highlighted the need for this Government to provide timely information so that there could be a full appreciation of the matter by the Committee of Experts. Moreover, they noted that there was still no definitive information regarding the number of workers affected by arrears in payment of wages, and that there had been no reference to any schedule for their payment. The Employer members stressed that this was a very serious matter, as nothing was more fundamental than payment of salaries to workers, which in this instance amounted to billions or perhaps trillions of roubles. In their view, the emphasis of the Government should be on its inspection system, penalties for non-payment and the need to indemnify workers. However, it appeared that the Government representative had addressed the problem as a matter of budget shortfalls. This indicated that there was a continued concentration on payment of workers by the public sector, and that part of the problem was that there had not been a rapid enough transition to a market economy. In this regard, they stated that no clear information had been given regarding the public and private sector share of the shortfall, as well as the exact sums involved. They stressed that what was needed was an effective labour administration and judicial system, so that workers would have appropriate recourse to both labour administration and to the courts.
The Employer members noted that the written information referred to 250,000 labour inspections, only 5,000 of which involved wages. However, before this Committee the Government representative had stated that there had been 11,000 rather than 5,000 inspections concerning payment of wages. This was an example of the need for more timely information so that this Committee could have a better understanding of the extent of the problem. While the above-mentioned information indicated that 6,400 employers had been fined, no information was given regarding their accountability in terms of the amount of unpaid wages, and it appeared that a relatively low level of fines had been imposed. The law adopted on 15 March 1999 provided for fairly aggressive scales of fines, but in this regard the approach of the Government was incorrect, as it would be preferable for such money to go to the unpaid workers and not to the Government. They stated that much more was needed to address the situation and, in particular, that the Government should provide the additional information requested in the report of the Committee of Experts with respect to prohibition of payment with promissory notes or coupons, regulation of payment in kind, and treatment of wages as privileged credit in the event of bankruptcy. They agreed with the Government's statements in its written communication that "[t]he time [was] ripe to ... introduce a new Labour Code which [would] optimize labour legislation". In view of the fact that the Government would require technical knowledge in order to address this and other labour problems in a new Labour Code, they proposed that ILO technical assistance should be provided both for the drafting of wage legislation and its effective implementation. They were in agreement with the Worker members that many of the conclusions of this Committee in 1998 also applied this year. There was a clear need for the Government to provide additional information to assist this Committee and to enable the Government to find a solution to the problem. There was also no clear evidence that concrete and efficient steps had been taken by the Government. The Employer members concluded by endorsing the statement of the Worker members that the Government should fully implement the recommendations of this Committee and of the Governing Body.
The Worker member of the Russian Federation fully shared the conclusions made by the Workers' spokesman. He acknowledged that, in recent times, there had been a small reduction in wage arrears. He noted that, from November 1998 to April 1999, the wage arrears were reduced by 28 per cent. In addition, new standards had been introduced in the Penal Code in order to impose sanctions in the case of non-payment. However, he pointed out that the report of the Government did not take into account all the implications of the arrears problem in Russia. In this regard, he emphasized that wage arrears problem was not only connected with budgetary problems, since the arrears in the public sector only represented 25 per cent of the total. Indeed, 75 per cent of arrears were in the private sector. Thus, the Government should report not only concerning the public sector arrears, but also on those of the private sector. He then emphasized that the problem was not linked to the financial crisis which took place in August 1998. In his view, this crisis increased the possibility for the Government to pay salaries since the rouble was considerably devalued. Concerning the 11,000 labour inspections carried out, he mentioned that this figure was insignificant compared to the approximately 500,000 violations which had taken place. He also considered that the elimination of the arrears problem only took into account the nominal sum of arrears and not the real purchasing power of the Russian people following the devaluation of the rouble. In this respect, he considered that the sum of the wage arrears should be indexed. He also criticized the fact that the information provided by the Government had not been submitted to the workers' organizations. In conclusion, he acknowledged that the discussion on the violation of the Convention had helped to move forward toward a solution. While there had been positive elements, he still insisted that the ILO should continue to monitor the implementation of the recommendations of the Committee of Experts, and he supported the idea to enhance technical assistance in order to find a better solution. He pointed out again that the Government should provide more information on the whole of the economy and not just on the public sector. In this regard, he mentioned that if this information was not provided by next November, the possibility of a special paragraph on this case should be envisaged. Finally, he referred to several important strikes which took place in April 1999 to protest against the non-payment of wages.
The Worker member of Norway, speaking on behalf of all Nordic countries, expressed her full support for the statements made by the Worker members as well as by the Worker member of the Russian Federation. She declared her solidarity with Russian workers and the Federation of Independent Trade Unions of Russia in their struggle for the basic human rights of all workers to be paid for work performed. She regretted that Russian workers had faced decreasing wages, deteriorating living conditions, unemployment, late payment of wages and huge arrears in the wages owed to them. The situation in Russia following the August 1998 economic crisis and the subsequent devaluation of the rouble was extremely grave and there were no signs that the Government had been able to come up with solutions to the problem. She referred to the report of the Committee of Experts on the violations of the Convention as additional evidence of the Government's apparent inability to address the situation. There was an urgent need for the Government to take specific measures to ensure that wages were paid on time. She questioned whether the number of labour inspections was sufficient, as well as whether the sanctions for non-payment of wages were sufficiently effective to deter future violations of the Convention. Unfortunately, the Government had not provided the information requested by the Committee and, in fact, the new information provided by the Government representative caused her to question the Government's ability to resolve this problem. In addition, noting that the Government had not responded to comments made concerning the payment of wages in promissory notes or through payment in kind, instead of in cash, she stressed the seriousness of the matter. She also expressed her concern at the lack of information provided by the Government on specific measures taken to prevent managers of funds for the payment of wages from illicitly using those funds for other purposes, such as financial speculation. The Government should also have responded to comments made by workers' organizations in August and October 1998 concerning the application of Article 12 of the Convention. She considered it to be a matter of grave concern that the education and health sectors of the country were affected, pointing out that by not paying teachers and health service workers, Russia was undermining its own future growth. She stressed that workers could not wait any longer and that wages had to be paid now. Therefore, she pledged solidarity with the Russian trade union movement.
The Worker member of Croatia indicated that the statement of the Government representative was only a general promise to implement the Convention. In her view, workers and their families could not cover their expenses with promises. What Russian workers needed were wages paid in cash, not in kind, to enable them to pay for basic expenses, such as gasoline, electricity, medicine and schoolbooks for their children. She expressed her concern for all Russian workers in these difficult times.
The Worker member of Spain underlined the importance of Convention No. 95, stating that the extent of general non-observance of the Convention in the Russian Federation was scandalous. He expressed deep concern regarding the situation, particularly with respect to the Committee of Experts' comments on the misappropriation of funds owed to workers. In the vast majority of countries, such acts constituted crimes that were prosecuted as a matter of course. He asked the Government representative to indicate whether this was also the case in Russia and, if so, to indicate the number of employers prosecuted for committing such crimes.
The Worker member of South Africa initially expressed his support for the statements made by the Workers' spokesperson and by the Worker member of the Russian Federation. He also took note of the response provided by the Government representative. In spite of the elements of progress reported, he remained concerned over the situation. In particular, he questioned whether the new legislation which introduced penalties for the non-payment of wage arrears was an effective measure. He noted that existing tax legislation gave priority to the payment of taxes over payment of wages, and that non-payment of wage arrears did not allow for an attachment of the assets of employers. He emphasized the seriousness of the social problems for the workers caused by the non-payment of wages, which included serious difficulties in meeting costs for both health and education. Furthermore, the current situation also raised serious concerns regarding how to deal with products emanating from the Russian Federation, in particular he questioned whether it remained appropriate to continue trading with the Russian Federation as the goods traded were produced by workers who were not being paid. He strongly urged the Government to undertake the measures recommended by the Committee of Experts and to report on specific and detailed measures on what actually was being done to remedy the present situation.
The Worker member of India considered that the reply of the Government was inadequate as it consisted only of promises to this Committee. In his opinion, the steps taken by the Government did not show that it was keen to comply with the provisions of the Convention. He then referred to a report of the UNDP which showed that the life expectancy of Russian people had declined in recent years. He also referred to an information bulletin by independent trade unions which clearly stated that the job situation had seriously deteriorated in Russia. He pointed out the fact that, while the Government was talking of an improvement in working conditions, international agencies were stating the opposite. He considered that the adoption of legislation was not enough. Concerning the new provisions in the Penal Code, he asked the question of how many employers had actually been sanctioned so far. He also deplored the fact that the Government had not consulted with trade union organizations and reiterated that dialogue with the social partners was essential. Finally, he considered that full implementation of the Convention was urgent.
The Government representative thanked all the speakers and mentioned that he shared their concerns. He declared that he would be informing the Committee of further developments and would communicate to his Government the results of the debate and the need to meet the requirements for full implementation of the Convention. He stated that his Government would try to prepare the information required, including the trends on payment of salaries, in the near future. He welcomed the special programmes with the ILO and assured that his Government would do everything in its power to find a solution to this serious problem.
The Employer members noted that the current situation in Russia was extremely serious. In their view, the Government was only addressing the wage-payment issue on a small scale. They estimated that roughly 1 per cent of the wage-payment situation was being addressed by the Russian labour inspection system and that a far smaller percentage of the problem was being corrected. Referring to the Worker members' comments concerning wage arrears in Russia, they stressed that expeditious action was required, especially in light of the declining value of the wages owed. They acknowledged the Government's commitment to take the necessary steps and stated their opinion that the Government should do four things. First, the Government should provide the Committee of Experts with the concrete information that it required to assess the situation. Second, the Government should pursue implementation of the Convention aggressively in terms of providing for adequate legislation, labour inspection and penalties for non-compliance. Third, the Government should set up a timetable according to which workers could expect payment of wages. Finally, the Government should take advantage of the technical assistance that the ILO could provide in order to fully resolve all aspects of the situation.
The Committee noted the oral and written information supplied by the Government representative and the discussion which took place. The Committee noted the complementary information provided on the status of payment of wage arrears and the results of labour inspections conducted. The Committee noted with deep concern that no comprehensive report had been supplied containing the statistical data and information requested by the Committee of Experts, the Governing Body and the Committee in 1998. It also noted with regret that the Government had provided no response to the comments of various workers' organizations. The Committee stressed that, without the requested statistical data and information, it would be very difficult for the Committee of Experts to evaluate any substantial progress made by the Government in the settlement of wage arrears and with regard to compliance with the Convention. The Committee noted that the Government was in the process of examining a new Labour Code which had been submitted to the Duma. It also noted the enactment of a new law on 15 March 1999, which established a system of penalties. The Committee urged the Government to provide the Committee of Experts with copies of the new legislation. It emphasized once again the importance that it attached to the Convention which establishes basic rights and principles affecting the daily lives of workers and their families. The Committee continued to view the situation on payment of wage arrears as extremely grave and fraught with serious social consequences. The Committee strongly urged the Government to fully implement the recommendations of the Committee set up by the Governing Body under article 24 of the ILO Constitution, which were adopted by the Governing Body in November 1997. It also strongly urged the Government to supply the Committee of Experts with a detailed and comprehensive report containing the statistical data and information previously requested, including information on concrete and specific measures taken to bring the legislation and practice into full conformity with the Convention. In this regard, the Committee trusted that the Government would continue to avail itself of the technical assistance offered by the ILO and that it would, in consultation with the social partners, continue to take measures to ensure that all legislative and practical obstacles to the rapid and complete settlement of wage arrears and to the full application of the Convention were removed.
Updated by HK. Approved by RH. Last update: 26 January 2000.