87th Session
Geneva, June 1999
Report of the Committee on the Application of Standards (...continued) |
Convention No. 98: Right to Organise and Collective Bargaining, 1949
Costa Rica (ratification: 1960). A Government representative stated that protection of the right to organize was accorded great importance by the Government and was a key objective of the National Plan for Concertation, put forward by the President of the Republic. Thus, in accordance with national tradition, the Government had given genuine substance to social dialogue, and had effectively re-established the Higher Council for Labour, a tripartite body, with a mandate to promote dialogue on employment and social matters. Among the results generated by the Council, mention should be made of the agreements regarding salary policy, compensation funds for dismissed workers and freedom of association. In this connection, the Executive had submitted a draft Act to the Legislative Assembly, which reformed various articles of the Labour Code, which included the agreement on freedom of association, adopted by the Higher Council for Labour. The Permanent Committee for Legal Affairs of the Legislative Plenary approved this draft, and the Government hoped soon to be able to report its adoption and incorporation into national legislation. The draft effectively provided for the rapid expedition of proceedings, including the imposition of legal penalties, in cases of anti-union discrimination.
In respect of the delay in processing cases of anti-union discrimination, and the failure to carry out the courts' rulings to enforce reinstatement of trade union leaders, the Government representative reiterated all his observations contained in the reply to the documentation submitted by the Inter-Confederal Committee of Costa Rica (CICC); he recalled that the Committee on Freedom of Association, in its report No. 311, referring to the case of FERTICA S.A., No. 1966, had expressed concern in this connection. The Government, in agreement with the Committee, informed the ILO that the Minister for Labour and Social Security had submitted a copy of the Committee's report to the Supreme Court of Justice, thus recalling to the higher judicial authorities the principle of full and speedy justice upheld by the ILO in matters relating to freedom of association. These principles would now be included in national legislation.
With the same concern, the Ministry for Labour and Social Security had, on 15 May 1998, issued Directive DNT-063-98, of which a copy was submitted to the ILO. This Directive reiterated the obligation of the competent ministerial authorities to expedite, within a period of two months without prejudice to due process and legitimate defence, proceedings in cases of alleged anti-union discrimination.
In more concrete terms, and as an indication of the resolution of the government authorities to answer to the concerns of the supervisory bodies of the ILO regarding alleged delay in administrative procedures in respect of unfair employment practices, the Government representative was pleased to provide information on the legislative progress to which the draft reform of various articles of the Labour Code bore witness. This draft had been submitted by the Executive to the Legislature on 13 November 1998, and had been unanimously approved on 16 March 1999 by the Standing Committee on Legal Matters of the Legislative Plenary. The draft, besides aiming to expedite administrative procedures and formalities in respect of the Labour Code, took account of the observations of the Committee in previous years and dealt, inter alia, with delays in investigative procedures in cases of anti-union discrimination and failure to respect judgements regarding the reinstatement of unfairly dismissed workers' representatives. The draft provides for: (1) the establishment of rapid administrative and judicial procedures with a view to ruling on the legality of disputed dismissals; brief proceedings, to ensure due process and legitimate defence; and (2) the assurance that the legislation would promote and develop the harmony and order of the labour sector and its representatives. The Government hoped in the near future to be able to report on the adoption of the draft in question and thus provide for speedy procedures in cases of anti-union discrimination, thereby ensuring enforcement of judgements, without prejudice to due process and legitimate defence.
Regarding alleged acts of interference of the employer in the establishment of workers' organizations, the Government representative stated with regard to the alleged acts of interference in the case of FERTICA S.A., it should be noted that he had been in full agreement with the ILO in strongly regretting all anti-union practices detrimental to the rights of the workers at FERTICA S.A. Furthermore, the Ministry of Labour and Social Security had confirmed the validity of the collective agreement concluded on 15 September 1994 between FERTICA S.A. and ATFe, and had extended the duration of the agreement until 15 September 2000. This constituted clear recognition by the board of managers of the organization, and was recorded as such in the Registry of the Companies Department of the Ministry of Labour and Social Security. As a further measure, the Ministry of Labour and Social Security had issued an administrative directive to instruct administrative authorities always to "take full care to ensure the protection of freedom of association of workers".
With regard to the Committee's comments on the possible inequality of treatment between trade union and solidarist associations regarding the management of compensation funds for dismissed workers, the Government representative was pleased to state that this situation had today been remedied by virtue of an agreed draft Bill concerning the transformation of compensation of dismissed workers. Representatives of employers, solidarists, cooperatives, trade unions and the Government were currently working on the last details of a draft Bill, a copy of which had been submitted to the Committee; this Bill altered the regime governing compensation for dismissed workers, and would soon be submitted to the Legislature. It provided for workers' freedom to choose the financial organization to administer compensation funds. Under its terms trade unions and solidarist associations were on an equal footing.
With respect to the non-recognition of the right to collective bargaining of public servants, the Constitutional Chamber of the Supreme Court of Justice had declared various provisions concerning the solving of socio-economic conflicts to be unconstitutional. These provisions were contained in the Labour Code for administrations governed by public employment law: the law had now rectified this situation. However, as an indication that collective bargaining in the public sector had recently undergone significant development, the Government had produced the draft Public Employment Act, published in the Official Gazette of 29 October 1998. This draft was presently coming before the Committee on Economic Affairs of the Legislative Assembly. It reaffirmed the right to collective bargaining and the right to strike in the public sector, in the terms set out in the ILO Conventions, as in the Political Constitution and the Labour Code. This draft Bill was the result of awareness-increasing action by the public administration on the need for a new regime of labour relations between the State and public employees. The original text, referred to by the Committee of Experts, was being revised to ensure that the public sector operated first and foremost in the public interest and that, in turn, public servants' employment conditions should be such as to enable them to carry out their duties successfully, yielding greater employment flexibility and improving possibilities for employees' negotiation.
In respect of the alleged lack of adequate bodies to ensure the respect of the right to freedom of association, Costa Rica possessed wide legal protection regarding trade unions, set forth in the Political Constitution, international Conventions, the Labour Code, and more recently in the Case Law of the Constitutional Chamber. Costa Rica had a very high level of unionization. For example, in the agricultural sector there were more unions than in such countries as France, Spain and the United States. In some cases unions were duplicated. Freedom of association was a reality in Costa Rica. Finally, the Committee of Experts, in its report, had recognized the efforts made by Costa Rica and expressed its satisfaction at the measures adopted by the Government to introduce change into national practice and legislation, thus complying with the instruments adopted.
It was clear, therefore, that the Government was steadily advancing on the basis of social law and in compliance with the ILO Conventions which it had adopted.
The Employer members thanked the Government for the information provided. However, they noted that it would have been preferable if the information had been supplied in a timely manner to the Committee of Experts so that it could have been evaluated and reflected in their report. They recalled that Costa Rica had been discussed in 1993 and 1997 in the context of Convention No. 87. Now the Committee was looking at related issues from a different angle in the context of Convention No. 98. The Conference Cosmmittee's discussion was limited to the information provided in the Committee of Experts' report and, consequently, the facts before this Committee were limited. Regarding the case mentioned in the report on FERTICA S.A., they noted the Government representative's statements deploring the acts of interference by the enterprise and indicating that the matter had been referred to the judicial authorities. They were not sure of the full implications of this statement, since the Committee of Experts' report reflected only that the Labour Inspectorate had concluded that FERTICA S.A. had engaged in unfair practices. The action was now before the courts, but it was not clear when it had come before the courts or how the matter was being handled. Nevertheless, they expressed the hope that the matter was being handled expeditiously by the judiciary. They pointed out that the Government representative had noted the important issue of delays in processing cases of anti-union discrimination and admitted problems at the administrative and judicial level with respect to the handling of cases. They noted that the Committee of Experts recognized that plaintiffs are responsible for some of the delays. Nonetheless, they noted that the Government had acknowledged the need to expedite both administrative and judicial proceedings.
With respect to the non-recognition of the right to collective bargaining of public servants not engaged in the administration of the State, they stated that it was evident that no action had been taken over a number of years. They noted the Government representative's reference to a draft Bill which would provide a prompt resolution of this issue. However, given the lack of information, there was no way to assess the situation. They expressed the hope that there might be a way to speed adoption of this Bill. The Committee of Experts had also looked at the question of the non-application of collective bargaining agreements concluded by the parties. They noted that the Government had not provided information on this matter and referred to the decision of the Committee on Freedom of Association in this regard. Additionally, the Committee of Experts had noted communications from the CICC indicating that collective bargaining in the private sector was non-existent as a result of widespread trade union persecution. Again, they noted that there was no concrete information permitting any conclusions on this point. Finally, they urged the Government to provide concrete information to the Committee of Experts in a timely manner so that the situation in Costa Rica could be evaluated. They expressed the firm hope that the Government would enact the necessary legislation to bring it into full conformity with the Convention.
The Worker members thanked the Government representative for the information provided and stated that they shared the views expressed by the Employer members. They recalled that in 1993 and in 1997 this Committee had examined in detail the situation concerning collective bargaining in Costa Rica on the occasion of the examination of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In 1997 this Committee had concluded that, in spite of the direct contacts missions which were carried out in 1991 and in 1993, serious discrepancies remained between, on the one hand, the law and national practice and, on the other hand, international standards regarding collective bargaining. A structural problem existed regarding collective bargaining in Costa Rica largely due to a lack of efficiency of the law and the procedures aiming at trade union protection. However, since 1997 the Committee of Experts had received observations from the Inter-Confederal Committee of Costa Rica (CICC) on the application of the Convention. The Committee of Experts had to conclude that the Government had not replied to a large part of the observations by the CICC, in particular as regards the considerable number of denunciations of acts of anti-union discrimination and the non-application of collective agreements entered into between enterprises and trade unions. During this same period, the Committee on Freedom of Association had formulated conclusions concerning the enterprise FERTICA S.A. in Cases Nos. 1879 and 1966. In the latter case the Committee on Freedom of Association had concluded that, in practice, its recommendations requiring reinstatement of trade union leaders at FERTICA S.A. as well as reinstatement of the 265 trade union members had not yet been implemented. The directors of this enterprise had instead favoured the creation of a trade union committee parallel to the existing trade union and it had dismissed 265 workers, who were all trade union leaders. The Committee on Freedom of Association had further noted the inefficiency of the administrative system and the judiciary which existed in the past. The case of FERTICA S.A. represented, however, an illustration of this structural problem.
The Worker members indicated that the trade union maintained that in spite of the new legislation of 1993 solidarist organizations still existed. The risk for dismissals remained very significant for trade unionists, in particular in the banana plantations and in the nine export processing zones. Cases where trade union leaders and their families were subjected to death threats were even more serious.
The Worker members noted, moreover, the persisting problems relating to collective bargaining for public servants which had already been discussed by this Committee in 1993 and 1997. With reference to the recognition by the Government that there were problems in this area, the Worker members noted that the Government had also made a reference to a draft law on public service which would provide for the right to collective bargaining and the right to strike. In this respect the speaker noted that public servants who were not governmental employees did not have the right to collective bargaining, contrary to Article 4 of the Convention.
As regards the private sector, the report by the Committee of Experts seemed to indicate that the Government recognized the inefficiency of the laws regulating the procedure for the settlement of labour disputes, that no significant measures had been taken as regards trade union discrimination and that, at the national level, a considerable number of complaints about such discriminatory acts had been submitted. The Worker members, therefore, insisted that the Government significantly and without delay amend its legislation and practice with recourse, if necessary, to technical assistance from the ILO. The administrative and legal procedures should be examined promptly and the judgements should be implemented also in the export processing zones and in the banana plantations. Furthermore, the authorities should set up an effective system for collective bargaining governed by principles based on good faith negotiations, effective recognition of autonomous trade unions and respect for agreements entered into. In this respect the Government could also, if necessary, have recourse to technical assistance by the ILO. However, in view of the importance and the complexity of the questions raised and of the time elapsed, the Worker members queried whether a direct contacts mission would not be more appropriate. The Government should inform the Committee of Experts of the follow-up on the complaints against anti-union discrimination and the non-respect for collective agreements and should ensure that the recommendations by the Committee on Freedom of Association in the case of FERTICA S.A. be implemented. Finally, as regards the public sector, the Worker members requested the Government, without delay, to amend its legislation on this matter.
The Worker member of Costa Rica expressed surprise at the oral information supplied by the Government. The speaker criticized the delays in procedures in cases of anti-union discrimination where rulings had been made to reinstate union leaders. In this connection he referred to the dismissed workers from FERTICA S.A., none of whom had been reinstated, thus ignoring the recommendations of the Committee on Freedom of Association, approved by the Governing Body. He added that the enterprise refused to respect the recommendations or to come before the Ministry of Labour. The speaker affirmed that it was not certain, as the Government had maintained, that the General Labour Inspectorate had intervened in this affair, although the constitutional law governing the Ministry of Labour and the Labour Code empowered it to do so. The speaker requested the Government representative to indicate what progress had been made in the FERTICA S.A. case. He stressed that several workers from the enterprise remained dismissed, were on blacklists and consequently could obtain no work in other enterprises. The speaker referred to the resolution of the Constitutional Chamber whereby the Government had fixed a two-month time limit on the Labour Inspectorate to give judgement. He criticized the Government's affirmation and stated that the administrative procedure for the denunciation submitted by the RERUM NOVARUM Confederation and the Union of the Township of Aguirre regarding the anti-union persecution to which the Secretary-General of the organization and two members of its executive committee had been subjected, had taken more than four months. He also pointed out that the complaint submitted to the Labour Inspectorate over six months ago regarding the dismissed Secretary-General of the Bananero del Sur Union was still pending. He stated that the labour law judges were unfamiliar with ILO Conventions, although the ILO had organized an information campaign in Costa Rica to increase the judges' awareness of the standard-setting activity of the Office and the application of the Conventions. With respect to interference in the constitution of trade union organizations, it was clear that some employers repeatedly behaved in this way. The creation of a "ghost" union in FERTICA S.A. was simply one of the clearest examples. The enterprise had dismissed the executive committee of the ATFe Union, had constituted a parallel committee, and to date had retained union dues. This fact was denied by the Labour Inspectorate, however, contrary to the Committee of Experts' requests, the administrative authorities did not pursue the complaint on the grounds that there was insufficient proof. With respect to the inequality of treatment between trade unions and solidarist associations regarding the management of compensation funds for dismissed workers, the promised legislation had not been enacted, allowing the solidarist associations management of the millionaire funds of the workers and obstructing collective bargaining. With regard to the lack of bodies able to guarantee the enforcement of the right to organize, he indicated that this task was the responsibility of the Labour Inspectorate. However, this organizational body was completely neglected by the Ministry of Labour in that it lacked the number of inspectors required by the ILO Convention on this subject. Moreover, the Inspectorate has no vehicles for the transportation of inspectors, who also complain of the lack of funds allocated for their travel expenses by the budget. He indicated that the right to collectively bargain was severely restricted in Costa Rica. The anti-union position taken by some employers in refusing to allow the formation of trade unions in its enterprises seriously affected this right. Moreover, the Government had refused to recognize the public sector workers' right to collective bargaining. For example, it had instructed municipalities having negotiated collective agreements on the mechanisms used to eliminate them. Contrary to promises reiterated over the past 15 years, while the Government had sent draft laws to the Legislative Assembly regarding the right to collective negotiation and the right to strike in the public sector, these draft laws had been withdrawn in recent days. He indicated that the Government had committed itself before the Committee of Experts to resolve the issue of the right to collective negotiation by means of the draft law on public sector employment. Lastly, he noted that new complaints alleging the violation of Conventions Nos. 87 and 98 had been presented to the Committee on Freedom of Association, complaints which were now added to the more than 45 complaints examined by this Committee to date. In respect of the complaints recently presented, he referred to the case of the General Secretary of the Union of Southern Workers, Mr. Adrián Herrera, who was fired from the COBASUR company following his presentation of a list of petitions. Subsequently, he was attacked by a group of masked men who beat him brutally. Firing at him at close range, they threatened to kill him if he did not leave the union. He pointed out that, of the 712 collective agreements that existed in the country in the different areas of production and services, only 76 remained in force and that, in contrast, the direct agreements favoured by solidarist associations had grown to a total of 330. Finally, he affirmed the need for the Committee to approve a direct contacts mission to verify the events described on location and to provide the corresponding technical assistance.
The Worker member of the United States noted that Costa Rica was no stranger to the Conference Committee. Recalling that the case of Costa Rica had come before this Committee two years ago, he noted that the last two years appeared to confirm that little had changed. He indicated that the Costa Rican Government had been in contact with the international labour movement over the last two years and had made assurances that the fundamental problems concerning core labour rights in Costa Rica would be corrected. The Government had advised the AFL-CIO that it would be harmful and counter-productive for Costa Rica to be subjected to the labour rights complaint and review process of the General System of Preference in United States trade law. The cautionary statements of the Government had been respected in good faith, pending what was expected to be the positive outcome of the process of labour law and enforcement reform in Costa Rica. He regretted that today it had become evident that, two years later, the fundamental flaws in Costa Rican law and practice had not been corrected. He raised three points regarding Costa Rica's application of the Convention. First, he noted the problem of employer acts of anti-union discrimination, pointing out the apparent inability of the Government to prevent and remedy these acts. He reminded the Employer member of the United States that the statement he made regarding plaintiffs contributing to delays in proceedings involving acts of anti-union discrimination was in fact taken from the Government's report, not from that of the Committee of Experts. The Committee of Experts' report reflected the Government's statements that the responsibility for delays in processing cases involving workers victimized by employer anti-union discrimination did not necessarily lie with the administrative authorities, but might have more to do with the lack of rapid implementation and enforcement in the judicial system. Nevertheless, he recalled the Worker member of Costa Rica's statements that it often took at least two to three years for the authorities to process cases of anti-union discrimination, including anti-union discharges, during which time pro-union employees were left jobless and the union organization movement was completely destroyed. Regarding Costa Rica's administrative capacity to investigate acts of anti-union discrimination, he cited an ICFTU report indicating that in 1996 the Costa Rican Labour Ministry had only one labour inspector for every 30,000 workers in the export processing zones, which employ a total of approximately 90,000 workers. Even assuming, for the sake of argument, that the Government's administrative record on labour rights were perfect, there was still the problem of the lack of labour justice at the judicial level. While the judiciary was and should be the most independent and impartial branch of a government, he noted that it was still an integral part of that government. Therefore, the Costa Rican authorities had to assume responsibility for their courts' actions in impeding compliance with the Convention. With regard to the continued lack of collective bargaining and strike guarantees for public sector workers not engaged in the administration of the State, he recalled that the Government had been telling the ILO for the last four years that there were various legislative proposals pending which would correct the fundamental violations that existed. He noted that unenacted legislation did not suffice, nor de facto practices amounting to virtual rather than authentic collective bargaining. Finally, he referred to the comments of the Committee of Experts in regard to the Convention, stating that it strained credulity that there was not enough information to permit the Committee of Experts to make the link between trade union persecution and lack of effective collective bargaining in the private sector. As an example of this persecution, he noted information in the ICFTU report that workers in Costa Rica's banana sector were being fired and blacklisted for attempting to form unions, thereby negating their collective bargaining rights. Another method of anti-union persecution which precluded authentic collective bargaining in Costa Rica's private sector was the tolerance and recognition of the employer-dominated and manipulated Solidarista sham organization, also specifically mentioned in the Committee of Experts' report. He cited the FERTICA S.A. case as a blatant example of an employer engaging in anti-union persecution by means of unremedied anti-union firings, coupled with Solidarista favouritism, thereby preventing authentic collective bargaining. In conclusion, he concurred with the Worker members and the Worker member of Costa Rica that an ILO direct contacts mission should be sent to Costa Rica to bring about effective compliance with the Convention.
The Worker member of Brazil stated that Articles 1, 2 and 6 of the Convention were not being respected, as indicated in the report of the Committee of Experts and the statement made by the Worker member of Costa Rica. The establishment of a parallel executive committee, the slow proceedings, their ineffectiveness and non-implementation had been mentioned in relation to acts which violated the Convention. Moreover, public servants in the administrative sector had been denied the right to collective bargaining. The Government should ensure that administrative and judicial mechanisms to protect trade union rights were speedy and effective. Finally, he agreed that the Committee of Experts should request a direct contacts mission.
The Worker member of Colombia noted that the Committee was confronted with a classic case of violation of the ILO Conventions. The speaker expressed his concern with regard to the existence of the solidarist movement in Costa Rica, which he categorized as one of the worst enemies of the trade union movement. Moreover, he criticized a judgement issued with regard to a collective dispute in the fertilizer industry in Central America, in which the constitutionality of protecting the workers was challenged, following the termination of more than 300 workers. He noted that, while a regulatory decree established the necessary protection of the right of public servants to collectively bargain, in practice, this right could not be exercised in the education sector. Further, union registration was denied and the exercise of union activity was hindered. Lastly, he emphasized that the Government should undertake to observe the Convention and to combat all those instruments that endangered the right to work and to collective bargaining, such as solidarism.
The Government representative of Costa Rica indicated that the documents and draft Bills to which he had referred were in the possession of the Committee of Experts, with the exception of those that were in the process of being finalized, such as the draft law relating to severance pay. Certain issues being addressed today were old matters that the Government was willing to resolve and it had made great efforts to do so in an expedited manner. He indicated that the Worker member of Costa Rica had been less than truthful in denying the will of the Government to resolve these issues in a cooperative manner, recalling that his trade union organization had taken part in this participatory process. He noted that the draft law on public sector employment had been published in the Official Gazette on 29 October 1998. Additionally, he recalled that the process of reorganization and restructuring of the Labour Inspectorate which began in July of 1998 was the fruit of an accord reached through the participatory process and that a regulation was ready to be implemented in a matter of days. Efforts had been made to allocate monies in the 1999 budget to cover travel costs and purchase vehicles for the Labour Inspectorate. He pointed out to the Worker member of the United States that there was separation of powers in Costa Rica, that these powers were independent, and that the delays in the judicial system were not the responsibility of the Government. With regard to the issue of collective negotiation in the public sector, he noted that the Constitutional Court had ruled that such negotiations could only take place if there were a law permitting it. In this respect, the Government had drafted a law that had of course been removed from the coordination process so that it could be subject to tripartite consultation. Responding to the Worker member of Colombia, he indicated that the conflict with the teachers was due to the Government's compliance with an international standard that required a minimum period for the academic year (200 days), resulting in the need to take certain measures affecting teachers. Nonetheless, the authorities were committed to finding a solution with the utmost willingness. This was a conflict in an embryonic state that had not yet given rise to a complaint. With regard to the problem of the trade unionist employed in the Banco Agricola, the matter was in the process of being resolved. Lastly, he reaffirmed the Government's will to resolve the problems referred to by the Committee of Experts.
The Committee took note of the statement made by the Government representative and of the discussion that took place thereafter. The Committee recalled that for a number of years, the Committee of Experts had drawn the Government's attention to the need to remove discrepancies between national legislation and the requirements of the Convention. In particular, the Committee of Experts had requested the Government to take measures to ensure the rapid expedition of proceedings in cases of anti-union discrimination and to encourage and promote free collective bargaining between the State and organizations of public servants who are not engaged in the administration of the State with a view to the regulation of the terms and conditions of employment of these public employees. The Committee reminded the Government that technical assistance or a direct contacts mission were at its disposal to help in solving the longstanding problems of the application of the Convention, in law and practice. The Committee urged the Government to supply a detailed report to the Committee of Experts at its next session on the measures actually taken to ensure full compliance in the very near future, with the requirements of the Convention both in law and in practice.
Ecuador (ratifications: 1967 and 1959, respectively). The Government has supplied the following information:
During the workshop-seminar on international labour standards and their application in Ecuadorean law, organized from 17-18 February 1999 in Quito, under the auspices of the ILO Regional Office in Lima, there was a significant dialogue as well as a rapprochement between the deputies of the National Congress attending the event and the Minister of Labour and Human Resources. The possibility of communicating to the Congress a draft law revising the Labour Code and related laws was raised, in particular as concerns Conventions Nos. 87 and 98.
A new Constitution entered into force on 10 August 1998 resulting in a reinterpretation of all national legislation and an ongoing reform process. In light of the new Constitution and the results of the aforementioned workshop-seminar, the Minister of Labour and Human Resources collected and updated proposals for two draft reforms prepared in the context of the technical assistance mission (4 to 10 September 1997) to bring the legislation into conformity with the provisions of Conventions Nos. 87 and 98. Thus, exemptions and modifications are planned regarding certain legislative provisions criticized in observations and direct requests from the Committee of Experts, since the Government has already undertaken to implement the technical directives suggested by the ILO.
It is important to emphasize that certain suggested reforms will be routed alternatively as the length of the examination of the reforms by the Congress remains undetermined. As in the past the ILO will be informed as soon as the results of these various initiatives are known.
Argumentation
Since its entry into force on 10 August 1998 the Constitution sets forth the protection that the State owes to the worker, its attachment to the principles of social law, the intangibility of workers' rights, and, in particular, as is set forth in paragraphs 6 and 9 of article 35 which set forth respectively: "In case of doubt on the extent of legal, regulatory or contractual provisions as regards labour, these shall be applied in the manner most favourable to workers"; "The right of workers and employers to organize is guaranteed, as well as their free development, without prior authorization and in conformity with the law." The right to freedom of association is an inalienable principle and even in case of doubt in legal terms it must be defended and promoted by the State.
The harmonization of national legislation with a view to bringing it into conformity with the provisions of ratified international labour Conventions is an obligation from the time the Government joined the ILO and ratified the Conventions in question. This remains in practice a necessity according to the comments sent to the Government by the Committee of Experts concerning the failure to respect these Conventions. In this perspective, Conventions Nos. 87 and 98, which set forth rights and principles applicable to employers and workers would tacitly derogate, by virtue of article 163 of the Constitution, from various articles of the national Constitution and would entail the obligation to modify other articles. Thus, the provisions of these Conventions must be explicitly incorporated into the national legislation.
For the aforementioned reason, the Government presents the following draft of the law revising the Labour Code to ensure conformity of national legislation to current necessities and requirements.
Proposal for the revision of the Labour Code
Art. 1: Following article 452 of the Labour Code, the following paragraph will be inserted:
"Following communication of the refusal of official registration, a request for legal verification can, within 30 days, be filed with the competent legal authorities."
Art. 2: Article 466, paragraph 2 of the Labour Code, will include the following paragraph:
"In case of refusal to approve the works committee because of provisions contrary to the Constitution or to laws, the regulation will be as indicated in article 452."
Art. 3: Article 454, paragraph 11, will include the following paragraph:
"Under the protection granted by constitutional standards, higher-level organizations will have the right to express their opinions peacefully as to the economic and social policy of the Government."
Art. 4: In article 466, paragraph 4, the word "Ecuadoreans" is deleted.
In addition, a Government representative expressed his Government's regret at the observations regarding the lack of conformity of its national legislation to the provisions of Convention No. 98. He stated that he would take all steps to achieve the required harmonization. Over the past two years Ecuador had been through particularly difficult political circumstances, having removed a constitutional President of the Republic, established an interim Government which, 18 months later, yielded power to the present President of the Republic, who although legally and democratically elected by the people in May 1998, only took up his post last August. At the end of 1997, a constituent National Assembly had been established in Ecuador, charged by the people to draft a new Constitution. The Assembly, after six months' deliberation, set out a new Constitution, which entered into force on the day of accession of the new Government, that is, only on 10 August 1998. Among its basic standards, the Constitution included the following: it set forth the protection that the State owes the worker, its attachment to social law and the intangibility of workers' rights. The speaker referred to the text of article 35, paragraphs 6 and 7, on the right to organize, reproduced in the written information communicated by the Government, and stressed that the right to freedom of association was an inalienable principle which could not be violated and which the State must defend and promote. Further, paragraph 12 of article 35 of the Constitution expressly guaranteed the right to collective bargaining. Consequently, any legal agreement thus established could not be unilaterally modified or altered in any way. Article 163 was of special importance, since by virtue of this article the standards set forth in international treaties and Conventions, when promulgated, would become an integral part of the national legislation and would take precedence over lower-ranking laws and other standards. Thus, under the terms of the Constitution, international Conventions, and in this specific case of the ILO, would be automatically incorporated into Ecuadorean legislation and would be accorded a special importance, taking precedence over such laws and standards as might be in opposition to them.
However, it goes without saying that the drafting of a new Constitution involves alterations in national standards, and as such represents a major legal undertaking, so as to bring secondary legislation into line with the text of the new Constitution as well as several texts which had already been elaborated, with the cooperation of the ILO through a technical assistance mission in 1997, agreement of the texts with the new Constitution should be attained, with no concurrent diminution in their value and applicability. Finally, he stressed the value of the constitutional standards and their guaranteed application, by stating that whoever claimed his rights as a worker, as guaranteed under article 163 cited above, and had been infringed could submit an appeal in two ways: either in the form of a habeas corpus procedure, before a judge of the first instance, or directly to the Constitutional Tribunal, court of the highest independent jurisdiction.
In conclusion, he reiterated his regret that, for reasons already expressed centering around the political and legal instability through which his country had been passing until only a few months previously, and the recent entry into force of a new Constitution, that it was not possible on this occasion to report any definite results regarding the observations made on Ecuador's application of the Convention. In this connection, an information campaign launched this year with the aid of the ILO Regional Office (Lima) would raise awareness of legal and judicial functions and increase the scope of the country's commitment to ILO Conventions, thereby ensuring their application by the legal administrators; the campaign would also encourage members of National Congress to establish joint action with the Government and most importantly, with employers' and workers' organizations. This should yield definite progress in a very short time, with the drafting of legal standards in harmony with the Conventions and the constitutional standards. Thus worker and employer groups would join with the Government, with a view to stimulating legal action in all necessary fields. The speaker closed, thanking the ILO for the great help it had already given to Ecuador, and expressed his hope that his country could continue to count on the Office's aid.
The Worker members recalled that for several years previously the Committee had examined this case concerning the application by Ecuador of several Conventions, including the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The current situation in Ecuador as regards trade unions has been examined since 1987 and in 1988 and 1989 the case of Ecuador was even mentioned in a special paragraph. Specific observations had been formulated by the Committee of Experts in 1990, 1991, 1992, 1994, 1996 and 1998 as regards the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Several technical assistance missions had been carried out in Ecuador by the ILO with a view to ensuring that the appropriate measures be taken. The Worker members had nonetheless had to conclude that these actions had had no effect on the content of the responses by the Government; it continued to assert that it was examining the problem and that it would soon enact new legislation. The progress that occasionally had been noted had been too slight to be credible.
The Worker members noted that the Government made reference to the new Constitution both in its written and oral submissions. This Constitution provided expressly that freedom of association be implemented by legislation. The relevant legislation had, however, not yet been amended although the Minister of Labour had announced future amendments. Furthermore, the Government had only made reference to certain selected parts of the Constitution. Other provisions of the Constitution, such as the imposition of a trade union monopoly within state institutions, did not, however, conform to international standards. The Government did in fact limit itself to citing selected provisions and principles of the Constitution, but did not make reference to any other concrete measures that would have been taken in response to the main substantive issues and the frequent discrepancies noted by the Committee of Experts. The Government had even succeeded in surprising the Committee of Experts last year by wholly ignoring the results obtained during the technical assistance mission.
According to information from Worker members, the Government had decided in April 1999 to replace the SENDA (the National Secretariat of Administrative Development) by another system -- the National Council for Wages in the Public Service. This Council was composed of three members -- the Ministers of Finance and of Labour, and a worker member. The Council took its decisions by majority and had been given wide competence. It had total control over collective bargaining and fixed maximum wage levels. It could also forego the application of a collective agreement. The Committee of Experts noted in its report again this year that no measures had yet been taken to amend article 3(g) of the Civil Service and Administrative Careers Act to allow members of the public service or other public institutions or private institutions with social or public function to exercise the rights provided for in the Convention. The Committee of Experts regretted that the report of the Government made no reference to the questions raised regarding protection against acts of discrimination against trade unionists in employment or to the provisions in the Labour Code regulating the submission of draft collective agreements. Finally, the Committee of Experts had felt compelled to recall to the Government that, as regards teachers, it was requested to take measures to amend its legislation so that teachers could exercise the right to collective bargaining at all levels. In its examination of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee of Experts "while taking note of the goodwill expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention". Furthermore, the Committee had noted that certain new provisions of the 1998 Constitution gave rise to, or could give rise to, problems with respect to the application of the Convention.
The Worker members emphasized that they agreed that the Committee of Experts should make reference to the good intentions expressed by the Government. However, although the Government had good intentions, they might prove wholly insufficient. It was becoming increasingly difficult to accept recurrent declarations of good intentions reiterated year after year, in particular as the ILO had spared no efforts to provide technical assistance to the Government. The Worker members declared last year that "technical assistance and direct contacts missions of the ILO were not intended to serve as means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions". The Worker members therefore had demanded that specific conclusions should be formulated. They had requested that the Committee re-examine the case again this year and they had also requested that this demand be contained in the conclusions by the Committee. The authorities should cease to interfere with collective bargaining and should bring their legislation into conformity with the provisions of the Convention both in the private and public sectors taking into account all the observations made for more than ten years by the Committee of Experts. The Government should provide a detailed report of measures taken in time for an analysis by the Committee of Experts. Finally, should no progress be noted in the course of the next year, the Worker members would propose another set of conclusions in the Committee's report.
The Employer members noted that last year this Committee had examined the case of Ecuador with regard to its application of Convention No. 87. Although the case before this Committee was not on the same subject-matter as that case, the problems which had occurred with respect to the implementation of Conventions Nos. 87 and 98 were similar. They noted that following a technical assistance mission in 1997, two Bills had been drafted for the purpose of repealing, inter alia, section 1 of Decree No. 2260 which imposed the requirement that the National Secretariat of Administrative Development (SENDA) provide advice on draft collective agreements in the public sector. In this respect, they agreed with the findings of the Committee of Experts in its observation that this provision itself was not contrary to the provisions of the Convention, and pointed out that the ILO had no right to interfere with national matters in this respect. Moreover, they noted the information communicated by the Government in its report to the Committee of Experts to the effect that SENDA no longer existed.
With reference to collective bargaining in the public sector, they said that legal action should be taken in order to enable workers in official departments or other public sector institutions, as well as private sector institutions within the social or public sphere, to enjoy the rights enshrined in the Convention. In addition, it was necessary that provisions be modified so that the establishment of works committees was not dependent on the requirement that they be established by more than 50 per cent of the workers in question. With regard to the education sector, they recalled that although teaching staff did enjoy the right to organize and to bargain collectively at the national level, it should be for the trade union to decide at which level -- national, regional, provincial or branch -- it wished to carry out collective bargaining. However, they appreciated the attitude of the Government with respect to the need to take appropriate action. In conclusion, they stated that the preparation and adoption of the new Constitution referred to by the Government representative was not sufficient. A constitution provided a framework which needed to be implemented by law. Therefore, the Government should be requested in the conclusions of this Committee to continue at a rapid pace the legislative process that had already begun in order to bring its national legislation into conformity with the provisions of the Convention.
The Worker member of the United States indicated that the Committee in its consideration of this case seemed to be constantly searching for the truly honest government, since the same basic issues concerning the country's non-compliance with the Conventions on freedom of association, the right to organize and to bargain collectively had come before this Committee a number of times. He noted that during the course of an ILO technical assistance mission, the Government had stated that it was taking all the necessary measures to remedy several areas of non-compliance with the Convention. The Government had pointed in particular to two bills drafted in 1997; however, these bills had still not been enacted into law. While recognizing that this Committee had chosen to discuss the observation of the Committee of Experts concerning Convention No. 98 rather than Convention No. 87, he stressed that the rights set out in these two Conventions are closely intertwined, and the issues related thereto are often difficult, if not impossible, to separate.
The Worker member stated that, despite the Government's assertions, a large portion of public sector workers classified as civil servants and administrative career personnel, including public school teachers, did not have the right to bargain collectively or to strike. He noted that while the National Union of Educational Personnel may be allowed to take part in a sort of collective forum, this could not be equated with the right to bargain collectively concerning wages, hours and terms and conditions of employment, nor was it an acceptable substitute for the right to strike. He also pointed to the fact that although SENDA no longer existed according to the Government, due to a law enacted in April 1999, this body had been replaced by the National Public Sector Remuneration Council, which could not be considered to be truly tripartite since the Government representatives sitting on the Council could outvote the social partners. He emphasized that this Council had total authority to determine wages, hours and terms and conditions in the public sector, and that collective agreements with public sector workers could not include indexed wages. In addition, public sector employers illustrating economic difficulties were entitled to suspend their obligations under collective agreements.
Like the Committee of Experts, he expressed regret that there had been no response from the Government concerning the lack of legislative protection against anti-union discrimination at the time of recruitment in both the public and private sectors. He asserted that without such provisions, one could not reasonably find that there had been effective compliance with either Convention No. 87 or 98. With respect to workers in the public sector who are denied the right to bargain collectively, as well as those private sector workers classified as being employed in a social or a public sphere, who may only exercise that right if they succeed in establishing Committees authorized by more than 50 per cent of the entire workforce, he emphasized that this continuing legal obstacle effectively denied collective bargaining rights to a large segment of the workforce.
Although it had not been raised by the Committee of Experts, he drew the Committee's attention to the 1990 Export Processing Zone Law. In his view, this Law gave rise to significant problems with respect to the country's obligations under the Convention, since it allowed any enterprise to obtain EPZ status regardless of where it was located in the country, thus enabling temporary workers to be hired outside the scope of the guarantees provided in the Labour Code, particularly with respect to the right to organize and to bargain collectively. Furthermore, he asserted that there could be no effective or substantial compliance with either Convention No. 87 or 98 where the Government and the legal system could not protect the physical integrity and the freedom of expression of workers and their representatives. In this context he indicated that on 30 September 1998, a government official had publicly threatened to prosecute the President of the Confederation of Ecuadorean Free Trade Unions on the basis of "disparaging remarks about the country and for threatening national security". He asserted that this illustrated that trade unionists exercising freedom of expression in the country suffered threats of reprisals. In addition, on 5 September 1998 the tortured corpse of an executive officer of the Ecuadorean Trade Union Central was found.
The Worker member of the United States then concluded by expressing his full agreement with the recommendations of the Committee of Experts, and he hoped that the Government would be able to demonstrate real progress with regard to compliance with the Convention.
The Worker member of Guatemala welcomed the explanations given by the Minister of Labour of Ecuador and confirmed that Ecuador's new Constitution did indeed contain social and labour rights that guaranteed collective bargaining and gave priority to international standards over national standards. Problems arose, however, in their practical application. Constitutions were not regulations and only contained principles that then had to be given effect by ordinary domestic legislation. He stated that taking into account the background, the Committee should reach the conclusion that the problems relating to the application of Convention No. 98 persisted and needed to be resolved, thus the conclusions of the Committee of Experts should be supported. As the Minister of Labour had indicated, an appeal could be lodged and there were other ways of contesting constitutionality, but the procedures were lengthy and did not prevent damage being caused. Ecuador should not only bring its legislation into line with ILO standards, but also with the principles set out in its new Constitution. He underlined the benefits of negotiation for resolving social problems. Lastly, he indicated that in Ecuador there were limitations on the right of association and collective bargaining in the teaching sector.
The Worker member of Ecuador commended the Committee of Experts on its report, particularly in relation to the application by Ecuador of Conventions Nos. 87 and 98. He stated that one of the draft laws prepared by a technical assistance mission in 1997 had envisaged the abolition of the National Secretariat of Administrative Development (SENDA), after consensus had been reached between the Government, workers and employers, in view of the fact that SENDA could unilaterally, under the terms of Decree No. 2260, modify agreements which had been freely concluded by the parties through a collective agreement. In its report, the Government had stated that SENDA no longer existed and that it was about to take measures to abolish its functions. In practice, these functions had been assigned to a body called the National Public Sector Remuneration Council, with the aggravating factor that it had been given unlimited powers to establish maximum levels of wage increases, social benefits and conditions covered by collective agreements, thereby eliminating the freedom to negotiate. Although this body included a workers' representative (the other two were from the Ministry of Labour and the Ministry of Finance), it was clear that its decision would be taken in the exclusive interests of the Government, which had, therefore, become both judge and jury.
With regard to the request made by the Committee of Experts that section 3(g) of the Civil Service and Administrative Careers Act be amended, it was essential to take into account the provisions of section 253 of the Labour Code, which protected the right of all workers in social and public bodies to collective bargaining, and only excluded managerial and administrative level officials. Similar protection was set out in article 35 of the Political Constitution of the State.
He recalled that the Government had not taken any measures to overcome the incompatibility between national law and practice and the Convention. Anti-union discrimination had worsened, as evidenced through various practices and laws. Dating from the reform of the Labour Code in 1991, employers were recruiting workers through intermediaries and contractors, although they always avoided taking on more than 29 workers, so that the workers were not able to establish a trade union or engage in collective bargaining. In Ecuador, the minimum number of workers required to be able to exercise this right was 30. Moreover, there was no legal right to conclude sectoral-level collective agreements. These could only be concluded at the enterprise level. Many employers required workers to join associations which were controlled by the enterprise. When workers decided to organize for the first time and proposed a collective agreement, they were dismissed and had to initiate legal action to obtain compensation. This situation had given rise to great fear among workers who were trying to organize and propose collective bargaining that they ran the risk of losing their job in a country in which, of the economically active population of 4.2 million persons, around 3 million were unemployed or underemployed.
With regard to the freedom of association and right to collective bargaining of teaching personnel, there had been no progress. Teachers were obliged to call at least one lengthy strike each year to obtain wage increases.
He stated that the Government's report encouraged the hope that progress could be made in law and practice for the application of the Convention. However, in practice, exactly the contrary was occurring, as illustrated by an examination of the content of sections 51 to 57 of the Act to reform public finances of 30 April 1999. This Act was in contradiction with Conventions Nos. 87 and 98.
Nevertheless, despite the above, there was a readiness on the part of the Government to undertake legislative reforms for which, as it had stated in its report, it would call upon the technical assistance of the ILO. Based on this statement, and in view of the fact that technical assistance missions had been undertaken on various occasions, it might be necessary to send a direct contacts mission to achieve once and for all the harmonization of national law and practice with the Convention.
The Government representative stated that the National Secretariat of Administrative Development (SENDA) no longer existed; therefore, its authority unilaterally to amend agreements reached freely by parties to a collective agreement had been abolished. As far as the situation in Ecuador was concerned, he explained that the Constitution itself could not give effect to the provisions of the Convention, which required the enactment of hundreds of laws that would be adopted over the next four years. He highlighted the work carried out by the ILO Office in Lima, which supported the Government's efforts to promote ILO standards. Lastly, he reaffirmed the Government's intention to bring its legislation into conformity with the provisions of the Convention.
The Committee noted the statement made by the Minister of Labour and the written information supplied by the Government as well as the discussion which took place thereafter. It noted the constitutional developments which had taken place recently, but expressed serious concern that there had been very little progress in the situation of compliance in law and practice with the Convention. It urged the Government to take the necessary measures without delay to bring its legislation into full conformity with this fundamental Convention ratified 40 years ago. In particular, it stressed the need to reinforce the protection of workers against acts of anti-union discrimination at the time of recruitment and to remove the administrative obstacles to free collective bargaining in the private sector. The Committee also strongly urged the Government to take the necessary steps to ensure that workers in official departments or other public or semi-public sector institutions, as well as teachers at all levels, enjoy fully the right to organize for the protection of their occupational interests and the right to bargain collectively their employment terms and conditions. It recalled that the International Labour Office was at the Government's disposal to provide technical assistance which might be necessary in this regard. The Committee expressed the firm hope that the Government would supply detailed information to the Committee of Experts in its next report on the measures effectively taken to ensure in the very near future full compliance with the Convention in law and in practice.
Malaysia (ratification: 1961). A Government representative broke down the Committee's concerns regarding the Government of Malaysia's implementation of Convention No. 98 into three issues. First, section 15 of the Industrial Relations Act of 1967 relating to collective agreements for companies granted "pioneer status". Second, section 13 of the same Act concerning restrictions with regard to certain matters on collective bargaining. Third, the right of government employees to bargain collectively under section 15 of the same Act.
Regarding the first issue, the Government informed the Committee that the provision in question was in the process of being repealed. However, as the repeal process formed part of a general amendment to the Industrial Relations Act, the amendment to this section had inadvertently been delayed in order to accommodate amendments to various other provisions which were being incorporated. The Government was fully aware that the relevant provision had outlived its purpose and had taken appropriate measures to repeal it in the near future. The Government also undertook to forward a copy of this legislation to the Office as soon as it was enacted by Parliament.
In respect of the second issue, the Government took note of the Committee's comments that employment, promotion and termination should be matters for management's decision-making and form part of management's freedom to run the enterprise. The Government also took note of the Committee's view that transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining. In this regard, the Government reiterated its position that these three matters should not be predetermined in a collective agreement. In its view, if such issues were predetermined in a collective agreement, this would ultimately affect the rights of management to manage its business efficiently. However, while these issues were excluded from collective bargaining this did not grant unfettered rights to employers in this respect, as shown by the numerous relevant decisions issued by the Malaysian courts. Despite this restriction, issues related to those matters had been the subject of frequent negotiations, consultations and agreements between unions and management whenever the need arose, as the Malaysian labour laws did not prohibit such negotiations.
With reference to the third issue of the restriction of public services from collective bargaining, the Government reiterated that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS) and the Public Services Department (PSD) had met on a regular basis through various joint councils. In their discussions, they deliberated and negotiated remuneration packages, terms and conditions of employment and the resolutions of anomalies. While macro-level issues such as salaries, pension increases and general allowances were raised through CUEPACS, which was the central body of the public services union, other issues, specific to certain services or agencies, were taken up by the individual trade unions with the agencies concerned, either through the departmental joint councils or directly with the PSD. Presently, there were about 300 trade unions in the public service representing employees from various services, categories and agencies. Once negotiations were concluded, circulars were issued to the relevant agencies for implementation of the agreements.
Due to the differing objectives between the public sector and the private sector, and the Government being a single employer of more than 850,000 employees, it was not possible to have collective bargaining and collective agreements with each of the trade unions. The Government had to take into account equity and uniformity of salaries and terms of conditions of employment for all its employees. At the same time, the Government had to bear in mind the economic situation, the financial possibilities and the services needed to be provided to all its citizens in determining remuneration and other benefits for its own employees. In Malaysia, the mechanisms for consultation and negotiation for government employees were not limited to CUEPACS and the PSD or the individual unions of the various agencies. Rather, unions had access to the highest authority, the Prime Minister. To date, the mechanisms available had provided sufficient avenues for discussions and negotiations on salaries and terms and conditions of employment for public employees and had been successful in ensuring the protection and enhancement of the interests and the welfare of public sector employees. As an example, in early 1997, five trade unions representing employees from five government agencies submitted proposals and claims for salary adjustments to the Government. Unfortunately, due to the economic decline which began in mid-1997, discussions on the proposals were temporarily set aside. However, serious discussions resumed six months ago between these five unions and the Government. Only a few days ago, the Prime Minister announced the Government's approval for, among other things, salary adjustments for the five agencies, which would benefit nearly 11,000 employees, especially those in the lower income groups. Prior to this, a new circular had also been issued, which provided a certain group of employees with a special duty allowance. CUEPACS had played an important role in assisting the five unions throughout these negotiations.
It had always been the policy of the Malaysian Government to ensure that equity prevailed among all citizens, especially on social and economic levels. Enhancement of quality of life of the people could only be realized through economic development. It was therefore essential that the laws, policies and practices provide a balance between worker protection and enterprise development to ensure stability, harmony and a conducive climate for development. She indicated that the Workers' delegate from Malaysia representing CUEPACS would be in a position to affirm the Government representative's statement.
The Employer members stated that this case had been examined previously in 1994 at the Conference Committee. The case was related to collective bargaining issues, particularly with regard to Article 4 of the Convention, which were of a more promotional character. In this respect, three questions had been raised by the Committee of Experts in its report. The first question concerned section 15 of the Industrial Relations Act (IRA) which had limited the scope of collective agreements for companies granted "pioneer status". The Employer members stated that the Government representative had already promised in 1994 that this provision of the Industrial Relations Act would be amended. However, there had been some delay in the legislative process, with the result that the Bill had only been submitted to Parliament for examination recently. In this regard, the Employer members thought that the Government should provide some information as to the content of the Bill already at this stage of the legislative process. Another issue concerned section 13(3)(c) of the IRA with regard to matters known as internal management prerogatives, such as promotion, transfer, employment, termination, dismissal and reinstatement. The Employer members recalled that there was agreement as to the State's right to determine matters which could not be subject to collective bargaining, since such matters would ultimately affect the rights of management to manage. Indeed, the Convention had not enumerated matters which were not subject to collective bargaining. Such detailed provisions would constitute a contradiction to the voluntary character of collective bargaining. The Employer members thought that provisions in this respect could only be accepted in a recommendation which was legally non-binding. In this respect, they mentioned that the recognition of internal management prerogatives would consequently lead to a recognition regarding a possible limitation of the right to strike. However, the Committee of Experts had never considered such limitations. In relation to certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the IRA), the Employer members noted the indication of the Government representative to the effect that there existed committees which had participated on matters related to labour conditions, such as the determination of wages. In conclusion, the Government should be requested to provide precise information as to the collective bargaining which had taken place, the number of such co-determination committees as well as the number of agreements which had been concluded in this respect. This detailed information should be provided in written form as well as information concerning the amendment of section 15 of the IRA currently under consideration.
The Worker members considered this to be a serious case. Despite an ILO mission in 1993 and the Committee's discussion of this case in 1994, the situation remained unchanged. Despite the fact that the Government had had five years to fulfil its promise to repeal legislation limiting the scope of collective agreements for companies granted "pioneer status", the Committee was still empty-handed. Malaysia also had serious problems in regard to the application of Convention No. 87. While the Worker members recognized that the Committee was not now discussing Convention No. 87, they nevertheless drew its attention to the well-known overlap between Conventions Nos. 87 and 98. There was no point in giving workers the right to organize if they could not collectively bargain and no point in giving the right to bargain collectively if they did not have the right to organize. With regard to the three points raised by the Committee, the Worker members expressed their disappointment at the Government representative's statements. In 1994, the Government had indicated that it was taking action to amend section 15 of the Industrial Relations Act (IRA). The Worker members asked the Government to explain what had caused this amendment to remain at a standstill for the past five years. The Government representative was also asked to indicate the status of the proposed amendment and to indicate whether the Government intended to take steps to speed up this process. Disagreeing with the statement of the Employer members that issues such as promotion, employment and termination were matters for exclusive management decision-making, the Worker members stressed that the Committee of Experts had in fact stated that these issues could eventually be considered as internal management prerogatives. The Worker members emphasized that the other issues, namely transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining according to the Committee of Experts. The Worker members agreed that the legislation could be put in more general terms but noted that, if the Government intended to legislate specifically on this point, it should follow the Committee of Experts' recommendations on this point. He therefore requested the Government to indicate its intention in this regard. The Worker members noted the statement of the Government representative that, in practice, Malaysian employers did not have unfettered rights in regard to restricting collective bargaining. While this was reassuring, it was not relevant to the point made by the Committee of Experts. Simply put, the national legislation was not in conformity with the Convention and therefore must be amended. In relation to the Committee's comments on certain restrictions placed on the right to bargain collectively for public servants other than those engaged in the administration of the State, the Worker members noted the Government representative's statement that the National Joint Councils provided a sufficient avenue for collective bargaining. While the Worker members conceded that no complaints regarding this process had been received from the trade union side, they pointed out the distinction between law and practice and urged that the law be brought into conformity with the Convention. The Government representative was asked to respond to this point. Finally, the Worker members noted that the Government could not cite economic development constraints as an excuse not to conform its legislation with the Convention, which is a fundamental human rights Convention of the ILO without flexibility clauses, and urged the Government to take rapid action in this regard.
The Worker member of Malaysia wished to address the issue of the restrictions on collective bargaining in the public services in Malaysia referred to in paragraph 3 of the report of the Committee of Experts. As the Government had indicated in its report to the Committee of Experts, the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the National Joint Councils (NJC) and the Public Service Department (PSD) met on a regular basis to discuss issues affecting employees in the public service. Through these discussions, public sector unions did contribute to the deliberations on remuneration, terms and conditions of employment and the resolution of any problems related thereto. The Government had emphasized and guaranteed that the NJC provided a sufficient avenue for discussions and negotiations on salaries as well as terms and conditions of employment of public servants and that CUEPACS, as the national centre for public servants, played an important and responsible role in protecting the interests of public servants, including wage negotiations. With reference thereto, he stated that while he hoped that a system of collective bargaining could be implemented in the near future, the system of discussions and negotiations previously described would continue to remain applicable and was accepted by CUEPACS. CUEPACS and the Government of Malaysia agreed, in principle, based on the economic situation and improvements therein, that the salary scales would be revised every five years. The last revision for public servants in Malaysia was effective as of 1 January 1992 and was approved by the Government after meetings and discussions with CUEPACS. At the request of CUEPACS, certain adjustments thereto were made in 1995. Negotiations involving CUEPACS for a renewed revision of the salary scales would be initiated in a few months' time, following an agreement with the First Finance Minister of Malaysia on 18 March 1999. This system could be considered as forming part of a collective bargaining mechanism. CUEPACS, which represented some 800,000 civil servants in Malaysia, looked forward to further improvements in the negotiation system for public servants in Malaysia. During the General National Joint Council meeting on 24 April 1999, the Government had agreed in principle to set up an arbitration court for public servants to handle the system of services and other matters arising in public service.
The Employer member of Malaysia wished to address the so-called management prerogative referred to in paragraph 2 of the report by the Committee of Experts. He was pleased to note that the Committee of Experts had accepted that employers did have the freedom to manage and that this freedom also involved certain rights of management. He emphasized that this freedom to manage resulted in the creation of employment and jobs. In order to encourage and enhance such contribution from the employers, certain rights to manage must be retained by the employers and be outside the scope of collective agreement. Some of these rights had, in the case of Malaysia, been incorporated in section 13 of the Industrial Relations Act (IRA). These rights should be retained and the speaker's organization (Malaysian Employers Federation (MEF)) did not encourage the Government to make any amendments thereto. The IRA had functioned satisfactorily for more than 20 years, and in view of the tripartite environment in which it operated, there was no need to change the present situation. In any event, he noted, the employers' management rights could not be arbitrarily exercised. A significant case law emanating from the Industrial Court had fettered the exercise of these rights, and any complaints related to such exercise could be addressed to the Industrial Court. Furthermore, and to the extent that general dissatisfaction exists as regards these rights or the exercise thereof, such issues could be brought up by any party in the National Labour Advisory Council in Malaysia, a tripartite entity set up to discuss labour issues.
The Worker member of Pakistan noted that the Government had not fulfilled its 1994 undertaking to amend section 15 of the Industrial Relations Act. He urged the Government to expedite this process, as well as to amend sections 13(3) and 52 of the Act, in accordance with the recommendations of the Committee of Experts. He took note of the comments made by the Employer and Worker members of Malaysia in which they indicated their desire to improve the present system in the country. He requested the Government to provide the information requested by the Committee of Experts on the manner in which collective bargaining was encouraged and promoted in practice between public employers and public servants other than those engaged in the service of the State. While noting the Government's information that Malaysian legislation had been interpreted by the courts, he pointed out that individual workers were not always able to litigate their complaints. He reminded the Government that it remained under an obligation to bring its national legislation into conformity with the Convention and expressed the firm hope that it would do so in the near future.
Another Government representative of Malaysia thanked all the speakers for their comments. He recalled that it had always been the policy of the Government to review all labour laws to keep them in line with economic developments. He reiterated that there had been no delay to amend section 15 but explained that since 1994, other legal provisions had been amended and that it had been requested that all these amendments be presented together, which of course caused a delay. He also pointed out that the process of amending legislation included consultation with the social partners. He then explained that the 1997 economic downturn had changed certain priorities and that it had been necessary to protect workers' interests. Finally, he assured the Committee that his Government would submit the necessary legislative amendments as soon as they had been adopted by the Government.
The Worker member of Greece considered unacceptable the Government representative's excuse that, despite every effort having been undertaken by the Government to amend its legislation, difficulties remained in adopting new legislation, and that after five years no changes had been recorded, particularly since Malaysia was an economically developed country and had not suffered unduly from the Asian crisis.
The Worker members expressed their disappointment with the response of the Government. The Government had only responded to the first point and that response was the same answer given by the Government in 1992 and 1994. The Worker members urged the Committee to signal a sense of urgency to the Government so that it would expedite the amendment process. The Worker members pointed out that it would be disastrous for the ILO supervisory system if points repeatedly discussed were never acted upon. The Government should be required to respond to the issue raised by the Committee of Experts regarding the legislation regulating internal management prerogatives. Finally, the Government's response that the consultation system with regard to collective bargaining for civil servants was functioning adequately was insufficient.
The Employer members recalled their views expressed in the first intervention. The Conference Committee could not request the Government to eliminate restrictions imposed by section 13(3)(c) of the IRA relating to matters known as internal management prerogatives. Provisions were not necessarily required for matters which would be excluded from collective bargaining. This issue had to be regulated in consultation with the social partners. However, the method to determine matters for collective bargaining could differ from country to country. The Government therefore should only be requested to provide additional information on the subject. Moreover, there was agreement as to the necessity to amend section 15 of the IRA.
The Committee took note of the statements made by the Government representatives and of the discussion which took place thereafter. The Committee acknowledged the willingness of the Government to repeal section 15 of the Industrial Relations Act (IRA), 1967, which limited the scope of collective agreements for companies granted "pioneer status", but recalled that according to the Committee of Experts these "positive measures" had been announced by the Government since 1994. Similarly to the Committee of Experts, the Committee urged the Government to repeal section 15 and to amend section 13(3) of the IRA at an early date so as to ensure that workers' organizations and employers were encouraged to negotiate freely the terms and conditions of employment of the workers in accordance with Article 4 of the Convention. In addition, the Committee asked the Government to provide more information on how collective bargaining was encouraged and promoted in practice between public employers and organizations of employees in the public and civil services. The Committee trusted that the Government would supply a detailed report on concrete measures actually taken to comply with the requirements of the Convention on all the questions raised by the Committee of Experts.
Convention No. 102: Social Security (Minimum Standards), 1952
Mexico (ratification: 1961). A Government representative of Mexico, in response to the request for clarification and statistical data on the application in practice of the new Social Security Act, which had come into force in July 1997, and the Act respecting retirement saving systems of April 1996, stated that he had not expected his delegation to be invited this year to provide the Conference Committee with information that the Committee of Experts had requested for the year 2000. However, in view of the constant desire of the Government of Mexico to collaborate fully with the ILO, a group of experts had been established to provide the available information in reply to the comments made by the Committee of Experts.
One of the aforementioned experts provided the clarification requested by the Committee of Experts. With regard to the level and duration of benefit, he stated that section 28 of the Social Security Act established a ceiling for the wage subject to contributions, which was set at 25 times the general minimum wage in force in the federal district. With regard to the level of the cash benefit provided under the sickness and maternity (allowances) branch, in accordance with section 98 of the Act, the level was 60 per cent of the last daily wage subject to contributions in the sickness branch, and 100 per cent of the above wage in the maternity branch, as set out in section 101 of the Act.
With reference to old-age benefit, in response to the question raised by the Committee of Experts as to whether in practice the minimum level of the old-age pension attained the percentage prescribed in Article 66 of the Convention, he stated that under the applicable legal provisions, and from the experience of over 1,075 old-age pensions which had been awarded under the new Social Security Act, their level was 40 per cent of the wage subject to contributions over the last years for a model beneficiary who fulfilled the conditions relating to age and qualifying period. This level was guaranteed throughout the life of the retired person and, up to now, no retired person had requested to be affiliated to the programmed retirement system.
In relation to the request made by the Committee of Experts for the Government to indicate the manner in which the application of Article 30 was guaranteed (throughout the duration of the contingency) under the programmed retirement scheme, and whether the beneficiary was entitled to receive the "guaranteed pension" envisaged in section 170 of the Social Security Act when the capital accumulated in the individual account was exhausted, he stated that in the event of the exhaustion of the resources in an individual account of a beneficiary of a pension who had opted for the programmed retirement scheme, the retirement fund administration company would notify the Mexican Social Security Institute so that it could continue providing the guaranteed minimum pension. This meant that, once the resources had been exhausted, the pension would be covered directly by the Institute through the funds allocated for that purpose by the federal Government, in accordance with section 172(3) and (4) of the Social Security Act.
Concerning the request for the Government to indicate the manner in which a reduced old-age benefit was provided, in accordance with Article 29, paragraph 2, of the Convention, he stated that section 154 of the Social Security Act provided that workers who retired at the age of 60 years or over and who had not fulfilled the required 1,250 weeks of contribution could withdraw the balance from their individual account or continue paying contributions until they had completed the necessary number of weeks to be entitled to a pension. In this case, provided the insured person had paid precisely the minimum level of contributions set out in Article 29, paragraph 2(a), of the Convention (750 weeks), she or he would be entitled to the benefits in kind under the sickness and maternity branch, which were equivalent to a reduced old-age benefit.
Concerning the industrial injury benefit, invalidity benefit and survivors' benefit covered by Articles 56, 57, 62 and 63 of the Convention, he stated that the invalidity pension for workers who had fulfilled the qualifying conditions set out in section 122 was equivalent on average to 35 per cent of the wages paid over the 500 previous weeks since, as pointed out by the Committee of Experts, this benefit, which could be supplemented by family allowances, was paid to all pensioners and was equivalent to: 15 per cent of the level of the pension for the spouse or common-law wife of the pensioner; 10 per cent for each of the pensioner's children under the age of 16 years; in the event that the pensioner had no spouse, common-law wife or children under 16 years, an allowance equivalent to 10 per cent was provided to each of the pensioner's economically dependent parents; in the event that the pensioner did not have a spouse, common-law wife, children or parents, an assistance benefit equivalent to 15 per cent of the level of the pension was provided; or, in the case that the pensioner only had an older relative, an assistance benefit equivalent to 10 per cent of the pension was provided. All of these measures were based on section 138 of the Social Security Act. The level of 15 per cent of the pension was equivalent to 5.25 per cent of the percentage which served as a basis for the calculation of the pension, while 10 per cent of the pension was equivalent to 3.5 per cent of that percentage. This meant that a pensioner with a wife and a child would receive a pension equivalent to 43.7 per cent of the pensionable wage, which was clearly above the 40 per cent figure referred to by the Committee of Experts. In other terms, the invalidity pensions provided in accordance with the new Act would, as a minimum, amount to 43.7 per cent for the average pensioner, and in no event less than 40.25 per cent of the average wage over the last 500 weeks of contributions.
Turning to the surviving spouse and orphans' pension provided to a model survivor (a surviving spouse with two children) of an insured person or a retired person who died due to a cause which was not related to an occupational risk, he emphasized that the level of the pension was never lower than the 40 per cent set out in the Convention, as illustrated by the following data: the widow's pension was 31.5 per cent of the pensionable wage; the pension for a child was 7.0 per cent of the pensionable wage; and the pension for a second child was 7.0 per cent of the pensionable wage. The total was 45.5 per cent of the pensionable wage. All these measures were based on sections 131 and 135 of the Social Security Act.
With regard to pensions provided as a result of an employment injury (occupational diseases and work-related accidents), he stated that, under the terms of section 58(II), in the event of total permanent incapacity, the insured person would receive a definitive monthly pension equivalent to 70 per cent of the wage on which contributions were being paid.
Turning to the manner in which long-term benefits were adjusted to the cost of living or the general level of wages, he indicated that specific information would be included in the report which would be submitted in the year 2000 on the application of Article 65 which would include, in addition to fluctuations in the cost of living, any changes in the general level of incomes, as well as changes in the level of benefits (average per beneficiary and for a model beneficiary), as well as changes in minimum benefits.
With regard to the financing of benefits, he stated that the statistics requested in the report form, in compliance with Article 71, point 3, would be provided in the report to be submitted in the year 2000.
On the subject of the administration of the social security system, he indicated that the Social Security Institute undertook and submitted annually to its Technical Adviser and General Assembly its Financial and actuarial report, which contained the appropriate actuarial calculations for each branch of insurance and studies on their financial viability.
On the subject of the participation in their administration of the persons protected by the schemes, he informed the Committee that both AFORES (Society for the Administration of Pension Funds) and SIEFORES (Specialized Company for Pension Fund Investment) were governed by an administrative council with the participation of at least two independent advisers representing the interests of workers who had opted for the AFORE for the management of their individual account or for the specific AFORE administered by the corresponding SIEFORE. Such advisers were not permitted to have financial links with the AFORE or the SIEFORE, nor to work with any of their shareholders, and had to fulfil the requirements set out in the Act respecting retirement savings systems. Independent advisers were an important factor in supervising the resources entrusted by workers to AFORES or invested in SIEFORES, since their votes were required to approve the self-management programmes of AFORES and the contracts concluded by them.
After stating that the report which was being prepared would include all the statistical information requested in the report form (Article 76, paragraph 1(b)(I)), he stated that, with regard to the application of the transitional provisions which had been adopted covering persons who were already insured under the Mexican Social Security Institute, before the coming into force of the new Social Security Act, the Act of 1973 had not been withdrawn completely (it had not been repealed) upon the adoption of the new Act, but had simply been derogated (had partially lost its force of law) in order to safeguard the acquired rights of insured persons under the previous Act (particularly with regard to pensions). As a result, workers who fulfilled the requirements set out by either the former Act or the new Act, as appropriate, could have recourse to the Institute for the calculation of the level of their pension, under the terms of both the 1973 Act and the 1997 Act. It was for the individual worker to decide to draw a pension in the event of old age or retirement at an advanced age under the terms of the Act, which was the most advantageous.
He added that, in order to ensure the readjustment of old-age, invalidity and survivors' benefits, as well as the benefits paid in the event of employment injury and those provided under the 1973 Act, in conformity with Article 65(10), of the Convention, the same Act was applicable and established that they rose by the same percentage on the same dates as increases in the general minimum wage in the federal district.
He hoped that he had removed any doubts as to compliance with Convention No. 102 by Mexico.
The Worker members expressed their gratitude to the Government representatives for the information provided, the good will shown and the desire to continue to cooperate with the ILO. The Worker members had proposed discussing the case of Mexico in relation to the Convention for three reasons. First, they did not want to restrict the discussion within the Committee to the fundamental and priority Conventions only. The application of Conventions of a technical nature was important to the daily lives of workers, the unemployed and their families. Moreover, the Committee should be concerned with new developments and trends in social policy and practice, in respect of international Conventions. They pointed out that national authorities did not always take account of the objectives and guiding principles of international standards. Second, the ILO's supervisory system also served a preventive function. There was no need to wait several years to indicate and discuss problems which arose in the application of Conventions. The Convention had been drawn up to ensure a degree of flexibility and left significant room for manoeuvre at the national level to take account of the different levels of development, and the differences in the conception, financing and management of the social security system. Nevertheless, this Convention had the clear objective of establishing minimum standards which should be respected, irrespective of the social security system in place. Third, important changes have been made to the retirement pension systems and social security in general, particularly in Latin America, with the introduction of individual savings accounts, investment funds and the rejection or weakening of national systems. Although it may be true to say that the manner in which reforms had been implemented may differ from country to country, there were nevertheless similarities. The present Committee had noted that, in certain cases, problems in applying the Convention had arisen. It emphasized that all retirement systems, irrespective of whether they were private, public or a combination of both, should respect minimum standards in order to ensure credibility on the scale of contributions, pensions, the number of workers protected and the management and methods of application.
The Mexican social security system had recently been reformed and the Government did not always have available all the necessary information to determine whether the system complied with minimum standards. However, in taking account of the importance of these reforms, which significantly changed the concept and functioning of the system, the Worker members were seeking assurance that the system complied with these standards. They had already indicated that a number of the provisions of the new Social Security Act of 1 July 1997 did not appear to be in compliance with the Convention. The Committee of Experts referred to article 162 of this Act which laid down a considerable qualifying period of contribution (24 years) to become entitled to an old-age pension; Article 29(2) of the Convention laid down a reduced benefit for a worker who had contributed for a period of 15 years. The Committee of Experts also referred to articles 141, 131, 135 and 144 of the Act concerning invalidity pensions and survivors' pensions, which provided that the level of pensions be limited to 35 per cent of the previous average wage, whereas the provisions of the Convention required that the level of pension be at least 40 per cent of the previous earnings. The Government representative provided information on this and other points. The totality of the information and statistics provided would be examined by the Committee of Experts.
Finally, the Committee of Experts had noted that the legislative texts in their present form did not give clear indications as to their conformity with the principles and minimum levels laid down in the Convention. The questions concerning the level of old-age pension did not appear to be established in advance but were subject to the accumulated capital in individual accounts, whereas the Convention laid down the level of minimum pensions; the consequences for the beneficiary when the accumulated capital in the individual account had been exhausted taking into consideration that Article 30 of the Convention provides that the pension should be paid throughout the beneficiary's lifetime; the indexing of pensions and other allowances to take account of increases in the cost of living as provided for in Article 65(10), of the Convention; the guarantees as regards the financing of the system: in particular, how would pensions be paid in the event of a financial and economic crisis or difficulties facing the pension fund investment companies (SIEFORES and AFORES); the guarantees regarding the supervision and administration of pension funds and investment funds; and, finally, the manner in which workers would participate in the administration of the system. The Government representative had responded to the questions raised and these responses would be examined in depth by the Committee of Experts.
The Worker members had received negative echoes from several trade union organizations operating in different sectors and enterprises. Moreover, the Committee of Experts referred to a communication dated June 1997 from various trade union organizations expressing concerns of a fundamental nature. Concerns had also been expressed with regard to the health care system, also covered by the Convention. The Worker members had also raised questions with regard to the guarantees concerning solidarity amongst the generations, the level of pensions in the event of chronic illness, the consequences of this new system on workers who were already members of the Mexican Social Security Institute when the new Act took effect. They requested the Government, as indicated by the Government representative, to provide detailed information including actuarial calculations and statistics to enable the Committee of Experts to analyse the existing situation in its entirety. They also requested the Government to ensure that its legislation fully complied with the Convention and, where appropriate, to adopt the necessary amendments.
The Employer members thanked the Government representative for the comprehensive oral information covering a difficult technical field. Despite the short notice, the information had been of an exemplary nature. Significant new measures had been adopted in the country recently, including new legislation in both 1996 and 1997. The Employer members fully understood the concern of workers that the new social security system might have the effect, not of improving, but of worsening the situation. The Government representative had not been able to provide detailed information as yet. Indeed, the situation in Mexico needed to be examined in the context of the measures which were being taken in other countries, particularly in the Latin American region. Traditional social security systems were being reorganized. This was occurring because they had been found to be inadequate. The old systems had not been able to meet their obligations or achieve their objectives of providing benefits in cases of social need. The benefits they provided did not constitute adequate social guarantees and their level was decreasing. The reason for the restructuring was to replace or supplement the former system, which was normally a public system, by the private provision of benefits. In the case of Mexico, which was organized on the basis of the federal State, the system was not completely private and guarantees were provided by the State for the provision of minimum benefits.
The Employer members recalled that the Convention had been adopted in 1952 when many of these developments had not even been imagined. Social security at that time had only consisted of state-run systems. More recently changes had been introduced in many countries. Even in a country which was associated with the first introduction of certain types of social security, particularly as a result of measures taken by Bismark, far-reaching changes were being discussed. In the case of Mexico, there was concern in some quarters about the effect that the changes would have on the benefits provided and there was a fear that the situation might worsen. The Convention contained provisions concerning minimum benefits, but it did not cover situations in which the benefit system changed. The question was therefore whether the respective minimum standards were guaranteed by the new system. A number of very technical questions had been raised by the Committee of Experts. The fact that one Government member had stated that he would not be capable of participating in a technical discussion of this nature at such short notice merely served to emphasize the value of the information which had been provided orally by the Government representative.
Nowhere in its report did the Committee of Experts express the view that the Convention was being violated by Mexico. What was at question was the effect of the new system. Many of the questions asked by the Committee of Experts could only be answered by the provision of statistical data. However, the law was very recent and in order to obtain the necessary perspective, it would be necessary to compile data over several years. The questions raised by the Committee of Experts concerned the nature of the benefits provided in such branches as sickness and maternity, as well as whether the levels of benefit provided were in accordance with Article 66 of the Convention. The Committee of Experts had requested information on the level of old-age pensions and whether there was a ceiling to benefits. One of the doubts which arose was how a pension could be calculated in advance if it was based on capital accumulation and how the Government was complying with its obligation to guarantee a minimum pension calculated in relation to minimum wages. Another question concerned the calculation of benefits payable in the event of occupational accidents and diseases. A final series of questions concerned the management of the new system and the participation of workers and insured persons. The answers to these questions, when they were received, would be examined by the Office and the Committee of Experts. If at a later stage the case were mentioned once again in the report of the Committee of Experts, the Conference Committee would have to decide whether it should be re-examined. In the meantime, in its conclusions, the Conference Committee should confine itself to requesting the Government to provide information in reply to the questions raised by the Committee of Experts.
The Employer member of Mexico stated that the new Mexican Social Security Act, which had been developed through dialogue between the sectors of production, with the Government acting as an intermediary to guide the participants, and with the assistance of distinguished academics, was at the stage of its initial application. It would be necessary to wait until after its application to know its most important effects.
He stated that the general decision to develop these new regulations had been taken as a result of a pressing need, since the traditional concepts had become obsolete. The dynamism of social security required greater progress in protection measures.
He emphasized that the employers' movement, which participated actively in the governing bodies of the Mexican Social Security Institute, were totally convinced that its tripartite structures provided the most democratic form for their intervention as social partners. He believed that the transformation of Mexican social security, as embodied in its new legal framework, represented a step forward in protecting the rights of insured workers and their dependants. Nevertheless, it should not be forgotten that financial benefits, which took the practical form of pensions, would have effects on future generations. He explained that care had been taken to respect the acquired rights of all insured persons covered by the previous system, who would have the option of deciding upon the application of either Act, whichever was most beneficial to them.
He expressed his conviction that the report requested by the Committee of Experts for the year 2000 would be submitted in time and would include the respective statistics, as well as information on the insured population. Finally, he reaffirmed that the above Act gave effect to the requirements of international social security in a positive and satisfactory manner.
The Worker member of Brazil stated that the comments made by the Committee of Experts concerning the application of the new Social Security Act in Mexico were a cause of great concern. The Convention was one of the most important in the ILO, since it covered not only retirement benefits, but also and in particular the other benefits and guarantees provided by social security. Security was undoubtedly one of the most important guarantees for workers throughout their careers against all the contingencies which might arise in relation to work. With regard to sickness and maternity benefits, he shared the concerns expressed by the Committee of Experts. It was unclear whether these benefits would be decreased by the placement of a ceiling on the wage which was subject to contributions and on the level of sickness and maternity benefits. Another concern expressed by the Committee of Experts concerned the form in which the old-age pension would be guaranteed in the new system and the guarantees set out in Article 29, paragraph 2(a), of the Convention respecting the right to receive benefits after 15 years of contributions. It was still unclear whether the Mexican legislation was in conformity with the Convention: however, to him it appeared that it was not.
He referred to the invalidity and survivors' pension, the level and scope of which appeared to be in contradiction with the requirements of the Convention. He called upon the Government of Mexico to make the necessary changes to its legislation to bring it into harmony with the Convention. Finally, he warned that, although the Mexican Government considered that privatization would provide a solution to its problems, it could not be achieved by violating the minimum rights set out in the Convention.
The Government representative stated that the concerns expressed by the Employers and Workers were implicit in the presentation by another Government delegate. He then drew attention to the total consistency of the legislation with the Convention. Regarding the doubts relating to calculations or acquired rights, both the other Government delegate and the Employer member of Mexico had dealt with the issue clearly. Lastly, he indicated that the comments made would be taken into account when preparing the detailed report to be presented to the Committee by the Government.
The other Government delegate welcomed the observations made by the Worker and Employer members and emphasized that, in fulfilment of the commitments to the ILO, during the whole process of drafting the Act, special care had been taken to ensure that its provisions were in conformity with the Convention. The Act had only been in force for two years, so it was too early to expect final data. The statistical reports validating the statements made at the meeting would be provided. Concerning the statement by the Worker members, he said that as they did not have a copy of his presentation some of the details might have escaped them and he, therefore, requested that the text be circulated. Lastly, he strongly emphasized that the Act was not contrary to the Convention.
The Committee thanked the Government representatives for their very detailed oral information and took note with interest of the discussion which followed. It noted the recent reforms undertaken by the Government in its social security system. In view of the great complexity of the issues raised and of the highly technical nature of the information supplied by the Government representatives, the Committee considered that such information should first be considered by the Committee of Experts. It also welcomed the promise by the Government representative that the Government would send a detailed report in the year 2000 containing full information, including statistical data, on all the points raised in the observation of the Committee of Experts.
Convention No. 107: Indigenous and Tribal Populations, 1957
Brazil (ratification: 1965). A Government representative expressed a certain surprise that, despite the fact that Brazil was one of the countries which had ratified the most ILO Conventions, it was regularly called before the Committee to discuss issues of compliance. He reaffirmed that the Convention was of great importance to his country and to himself personally, since he had been closely involved in many indigenous issues over the years, including visiting indigenous lands and developing the relevant legal instruments. He noted in this respect that the comments made by the Committee of Experts on the application of the Convention in Brazil acknowledged the information provided by the Government and the many positive developments which had occurred. New developments were occurring frequently; therefore, he welcomed the opportunity to provide the Committee with more up-to-date information and to answer any questions that might be raised.
In view of the great importance that it attached to the indigenous issue, the Brazilian Government had implemented a broad strategy covering land demarcation, health assistance and labour inspection, all of which had been acknowledged by the Committee of Experts. Nevertheless, his Government was aware of the fact that there continued to be areas in which the measures taken could be improved.
One of the issues which had been raised once again by the Committee of Experts consisted of the presence of garimpeiros in Yanomami territory. He noted in this respect that the Yanomami occupied a territory of some 9.5 million hectares, even though they only numbered around 10,000 individuals. For anthropological reasons, the Government of Brazil had decided to reserve this land for the Yanomami, which was a migrant population and wandered between Brazil and Venezuela. The Government had been taking measures to extract garimpeiros, or gold-miners, from the territory since 1987 and their members had now greatly decreased. Since the presentation of the last report to the Committee of Experts, four additional operations had been undertaken to expel illegal occupants from the Yanomami area, resulting in the expulsion of 4,500 garimpeiros. A new operation was being planned in collaboration with various federal institutions and the participation of representatives of the Yanomami people. He recalled in this respect that climatic conditions and the inaccessibility of the territory rendered such operations extremely difficult.
He stated that there were currently 15 units of the National Indian Foundation (FUNAI) in the region with responsibility for inspection of the indigenous area and support for its population. There had also been an expansion of activities aimed at the prevention and repression of illegal mining in the Amazon region. Examples of the action taken included the establishment by the federal police at the airport of Boa Vista, which was the main hub for illegal flights in the region, of a programme to control the fuelling and landing of aircraft. The gold-selling and buying stores in Roraima were also being closed.
The Government was continuing its programme of financial assistance to the towns and villages located on the border with Venezuela and Guyana. It was promoting the construction of health assistance units and schools in the States of Amazonas and Roraima, thereby absorbing local manpower and avoiding its deviation to illicit activities. The Government was also continuing to implement the "Calha Norte Programme", which was aimed at the sustainable and economic development of the region on the north-west border and the strengthening of the judiciary, the police and the fiscal and customs authorities. In relation to the protective measures undertaken to improve the situation of indigenous populations, he noted that his Government was following a delicate social policy in promoting the welfare of the estimated 325,000 indigenous inhabitants of Brazil, who accounted for a very small proportion of the total population of the country, which was estimated at 165 million. He noted that 12 per cent of Brazilian territory was recognized as official Indian land.
He added that in April 1999, the Brazil-Venezuela Working Group on Illegal Mining had met and significant progress had been made in improving the cooperation between the military and police authorities in both countries for the exchange of information, as well as between environmental specialists, with a view to establishing missions to the areas affected by illegal mining and exchanging information on environmental policies in the mining areas of both countries. Work was also in progress on a bilateral project for the implementation of economic activities to promote the sustainable development of the region.
With regard to the issue of land demarcation, he stated that in December 1998 President Cardoso had signed new decrees of homologation of an additional 21 indigenous lands. These included the indigenous reserve of Fazenda Baiana, in the State of Bahia, which was occupied by the Pataxo population, and consisted of 304 hectares, which was one of the smallest of the lands concerned. One of the largest was the Uneiuxi area, in the State of Amazonas, which was occupied by the Maku-Nadeb, and covered 403,182 hectares. The full list of these areas had just been submitted for consideration by the Committee of Experts. In addition, the President of the Republic had decided upon the expansion of the indigenous areas of Comboios, Pau Brazil and Caieras Velha, which were all occupied by the Guarani and Tupiniquim.
On the same occasion, the Minister of Justice had signed a declaratory instrument, which constituted the first step in the recognition of 12 indigenous lands, including the area known as Raposa Serra do Sol, which had been mentioned in the report of the Committee of Experts. This initiative paved the way for FUNAI to promote the administrative demarcation of these indigenous lands for their future homologation. He noted in this respect that the Raposa Serra do Sol area, which was occupied by the Ingariko, Macuxi, Wapixana and Taurepang, all of which constituted a population of no more than 4,000 people, covered an area of over 1.5 million hectares. Details on these 12 areas had also just been provided for consideration by the Committee of Experts.
He referred in particular to the declaratory instrument concerning the Raposa Serra do Sol area, which had been of particular concern to the Committee of Experts. The present instrument cancelled a resolution of the Ministry of Justice of 1996 which had excluded from the area a number of properties, including one farm, the village of Uiramuta and four other small villages. These had now been reintegrated into the Indian area of Raposa Serra do Sol. This decision took into account the anthropological view expressed by FUNAI which defended the need to demarcate this indigenous area in a continuous manner. The preservation of the culture of these people depended on the preservation of their territorial unity. This decision therefore constituted a benchmark decision by the Brazilian Government in favour of the preservation of the cultural plurality represented by the indigenous communities.
Turning to the issue of indigenous health issues and the responsibility for coordinated action in the field of health, he reported the revocation in 1998 of the Decree which had designated FUNAI as the institution responsible for the health of indigenous people. Henceforth, health programmes for indigenous populations would be planned and implemented at the federal level exclusively by the Ministry of Health. Based on a model of Indian health assistance proposed at two National Conferences on Indian Health, held in 1986 and 1993 respectively with the representatives of various indigenous groups. The Ministry of Health had decided to create 29 special Indian sanitary districts under federal responsibility as a means of ensuring the access of Indian people to health services. These sanitary districts would enjoy administrative, budgetary, financial and technical autonomy. They were being established on the basis of such criteria as population, geographical area, epidemiological profile, the social relations between the various indigenous groups, the traditional demographic distribution of the indigenous population and the availability of services, human resources and infrastructure. Each sanitary district would organize a network of health services to increase and improve existing services in coordination with a health agent for the indigenous communities. The programme also included the maintenance of small Indian hospitals in certain municipalities, which would be adapted to the specific indigenous health requirements. The districts would be financed with resources from the Ministry of Health, international cooperation organizations and the private sector. Their progressive implementation would be undertaken through a project financed by the World Bank.
With reference to the projects for hydroelectric power plants in Vale do Rio Ribeira do Iguapé, he stated that the three projects at Batatal, Funil Ribeira and Itaoca had only reached the state of feasibility studies and had then been abandoned, due to the cancellation of the concession by Act No. 8.987/95. The fourth project mentioned by the Committee of Experts, in the region of Tijuco Novo, was still subject to a valid concession in favour of the Brazilian Aluminium Company. However, it was frozen due to the fact that the concessionary had not received the necessary environmental authorization.
He expressed the opinion that the core of the observation made by the Committee of Experts concerned indigenous labour issues, as described in paragraph 15 of the observation. In this respect, he noted that the data provided by the Secretary of Labour Inspection of the Ministry of Labour in 1999 indicated that only 500 Indians were employed in two distilleries in the State of Mato Grosso do Sul. In May 1999, it had been possible to reach an agreement between representatives of the various indigenous communities and employers in the distillery sector, which had resulted in a document entitled "Communitary Understanding on Social Rights in Indigenous Labour Relations". This document established standards to be followed in the hiring of Indian labour, based on a contract of service which assured undiscriminated treatment of Indian workers, respecting their social organization, beliefs, habits and traditions and the application of all the labour rights set out in the Brazilian legislation.
In conclusion, in response to the request made by the Committee of Experts for information on the alleged eviction in 1996 of the indigenous peoples of the Guaraní-Kaiowá ethnic group from demarcated areas in the State of Mato Grosso do Sul, he stated that the information was not available and that he was still endeavouring to obtain it from the appropriate authorities. He added that Bill No. 2057 of 1991 respecting indigenous status and Convention No. 169 were still under examination by the Committees of the National Congress and that there had therefore been no change in the law in that regard.
The Worker members recalled that, although Brazil had ratified a high number of ILO Conventions, it had been invited to discuss problems concerning their application by the Conference Committee every year since 1988. The cases examined had covered a variety of Conventions, including the instruments on forced labour and freedom of association. In this respect, the Worker members pointed out that, while it was desirable for governments to ratify Conventions, ratification was not enough in itself. Measures needed to be taken for their implementation in law and in practice, and if the Experts considered that there were shortcomings, they would be discussed by the Conference Committee. Moreover, the fact that governments complied with the respective reporting requirements did not mean that their cases would not be examined by the Conference Committee. In this respect it was recalled that there were certain countries which had hardly ratified any Conventions and which could not, therefore, be called upon to provide information to the present Committee.
While appreciating the information provided by the Government representative, the Worker members observed that, on the basis of the reports supplied by the Government, the Committee of Experts had pointed to many aspects of the application of the Convention which gave rise to problems. The report raised many very serious issues, such as the situation of the Yanomami and the bad health of indigenous peoples. The Worker members therefore welcomed the presence of the Government representative and the full information that he had provided on many of the points raised by the Committee of Experts.
One of these issues concerned the occupation by garimpeiros of the Yanomami lands. Their presence in these lands had very serious and well-documented consequences on many aspects of the life of the indigenous populations concerned and their environment. Concern had been expressed by the Committee of Experts on this issue on many occasions. The question needed to be raised as to whether the Government in practice exerted any degree of control over the situation. Although the information provided by the Government had indicated that the measures taken between November 1997 and January 1998 had resulted in the expulsion of some 800 garimpeiros; earlier figures for the action taken in the period 1990-95 had shown that, despite expulsion, the number of garimpeiros had risen by some 3,000 for that five-year period. Had the actual number of garimpeiros also risen for the period 1995-99? The Worker members also observed that the descriptions provided of garimpeiros referred to such elements as landing strips and clandestine radio stations. This suggested that there must be significant organized forces behind them who were making large profits from the rich mineral resources to be found in the Yanomami lands. Was this indeed the case? If so, what action had the Government taken to identify them and combat their activities?
With regard to Decree No. 1775 of 1996 respecting the demarcation of Indian lands, the information contained in the report of the Committee of Experts was not reassuring. FUNAI had undoubtedly had good intentions, including the request that it had made to the Ministry of Justice to re-examine the administrative decision concerning the demarcation of indigenous lands in Raposa Serra do Sol. It had also made another request for additional surveys to be undertaken, which might pave the way for a decision on the matter by the President of the Republic. Unfortunately, all of this sounded very vague and inconclusive. Information was therefore required on what had happened in practice with Decree No. 1775. The Worker members expressed the fear that powerful and influential groups in the country were undermining the process of the demarcation of Indian lands. Indeed, there was evidence to suggest that Ministerial Resolution No. 80 had paralysed the progress which had hitherto been made in the law on this issue. Moreover, the interests of indigenous people and individuals and groups representing them appeared to be under constant threat from sectors of society which resulted in such practices as murder, death threats and corruption.
With regard to the fields of health, labour law and land demarcation, the Worker members observed that the internal problems of FUNAI, in terms of such issues as financing, manpower, internal organization and its involvement in certain illegal activities, were of great concern. Little appeared to have been done by the Government to resolve these problems, which affected a very vulnerable category of the population. The Government needed to provide further information on the measures that were being taken to improve the coordination role of FUNAI. Brazil had ratified the Convention through its own free will in order to protect the rights of the persons concerned. The Government should therefore be urged to give priority to the effective implementation of the Convention.
More information was also required on whether the practices of imposing forced labour on indigenous workers had been brought to an end. The Worker members requested information on whether a labour contract had been developed for the victims of forced labour in Mato Grosso do Sul.
Another issue on which the Worker members requested further information was on the progress made with regard to Bill No. 2057 of 1991 respecting indigenous status and Convention No. 169. Had the National Congress set a time frame for dealing with the Bill? Had Convention No. 169 in practice been submitted to the competent authorities and how long did the procedure usually take for decisions to be reached on the ratification of Conventions?
The Worker members expressed disappointment about the lack of measures taken to follow up the suggestions that they had made in the debate on this subject in the Committee in 1996. At that stage, the Government representative had welcomed what the Government had called the very interesting and positive remarks made by the Worker members and had promised that it would react to them in the report that it would submit the following year to the Committee of Experts. However, it was very disappointing to note that no reference had been made to any response in the report of the Committee of Experts for 1998. The suggestions had included the holding of national seminars bringing together all the groups concerned. The Worker members had called for the involvement of workers' and employers' organizations and the representatives of the indigenous communities. At that time, the Worker members had not insisted on the inclusion of this point in the Committee's conclusions in view of the undertaking made by the Government to organize such national seminars. However, in view of the lack of response, they called for the proposal to be included in the Committee's conclusions this year.
Finally, they recalled the importance of the Convention which, together with Convention No. 169, still constituted the only international treaties dealing with the issue of the fundamental rights of indigenous peoples. Although an instrument on the subject was being developed by the United Nations, a number of years would be required for its completion. The ILO therefore bore a heavy responsibility to show that such an instrument could work, even if only slowly and modestly. However, such progress could only be achieved if the ILO, together with governments and the representatives of workers and employers, made a real effort to work jointly to achieve the objectives of the Convention.
The Employer members thanked the Government representative for the information which he had provided. They noted that the Governments had been invited to come forward to the Conference Committee to discuss the application of various Conventions for a number of reasons. These included the need to obtain further information on a specific case. If the information provided today by the Government representative had already been available, it would have been possible to have obtained a better view of the situation. Nevertheless, they expressed appreciation of the efforts made by the Government representative to respond to the concerns raised by the Committee of Experts, which would facilitate the work of the supervisory bodies.
The basis of the Committee's work was the report of the Committee of Experts, which had noted, among other issues, the difficulties experienced by the Government in dealing with the gold-miners in the Yanomami lands, including the difficulties of access to the lands. The invasions of indigenous areas by these gold-miners created a series of problems, including the spreading of diseases and the fact that the indigenous people were pushed out of their land. The Government would only be able to fulfil its international obligations in this respect through a sincere endeavour to overcome these difficulties.
On the question of the demarcation of indigenous lands, although an impressive area was involved, it was difficult to assess the extent to which such lands had been demarcated and the proportion which remained to be dealt with. It would be helpful if further information could be provided to assess the implementation of the Convention by Brazil in this respect.
With regard to the potential lack of policy coordination in respect of indigenous populations, the Employer members welcomed the fact that the Government had reviewed its plans for the decentralization of health services for indigenous populations. If they had understood the Government representative correctly, the decision to centralize these services under the Ministry of Health had not yet been put into effect. Even though indigenous populations only accounted for a small proportion of the population, it was clear that they required special measures. The Employer members placed particular importance on the comments made by the Committee of Experts concerning the need for coordinated action in the provision of health services to indigenous peoples. The Employer members supported the appeal made by the Committee of Experts that the Government should continue to make every effort to ensure adequate, sustained and effective human and financial resources to prevent the extinction of indigenous peoples and to ensure that medical and sanitary services were provided to enable the eradication of diseases transmitted by settlers. This was an essential issue for indigenous populations.
They recalled that the issue raised by the Committee of Experts concerning the illegal employment of indigenous labour in Mato Grosso do Sul was connected with the observance of Convention No. 29. From the information which had been provided, it was still unclear whether the cases which had been identified in the distilleries constituted the whole of the problem of forced labour, or were merely an example of more widespread practices which took advantage of the disadvantageous situation of indigenous populations.
In conclusion, the Employer members stated that the Government had clearly taken some measures to protect indigenous peoples, which had addressed a number of the issues raised by the Committee of Experts. Nevertheless, there was evidently some way to go. They therefore called upon the Government to commit as many resources as possible to improve the implementation of the Convention.
The Worker member of Brazil welcomed the pertinent comments made by the Committee of Experts on the application of the Convention by Brazil. The goals of the Convention were to promote the cultural, economic and social development of indigenous populations, so that they had the same rights and opportunities as all other Brazilian citizens. He noted that although Brazil had ratified the Convention in 1965, the country had been the subject of several observations by the Committee of Experts since 1981. The problems observed year after year by the Committee of Experts gave the impression that the application of the Convention had only been a fiction for indigenous populations in Brazil. Problems relating to the application of the Convention in the country had been noted by the Committee of Experts for ten years.
Articles 2 and 27 of the Convention placed an express obligation on ratifying States to coordinate action between development plans for indigenous populations and the responsible authorities for their application. In this respect the Committee of Experts had for several years emphasized the reduction in the role of FUNAI, the body responsible for the application of indigenous policy. Moreover, the health policy for indigenous populations was not subordinate to the indigenous institution, the National Indian Foundation (FUNAI) but to the National Foundation of Health. While the Government had repeatedly promised administrative reform, it had never been carried out.
With reference to Article 10 of the Convention, he stated that the Government's report to the Committee of Experts did not provide any new information about the prosecution of those responsible for the massacre of 70 Indians in September 1993 (the massacre of Haximu). According to the reports of previous years, the massacre had been carried out by "fugitives". Although there was formal condemnation of the acts, the real practice was one of impunity. Concerning Article 11 of the Convention, he noted that Decree No. 1775 of 1996, allowing the administrative redefinition of indigenous territories, was still in effect. This Decree was, in his view, a menace to the native territories, and he pointed in this regard to the indigenous reservation Raposo do Sol. He stated that his federation had forwarded information on this situation last year. He referred to four hydroelectric construction projects in the State of Sao Paulo, which in his view would violate the Indian Guarani territory. He stated that the Government had not yet presented an environmental impact report or a report on the possible consequences of this construction for the indigenous nation. In this context, he called on the Government to comply with the provisions of Article 12(1) of the Convention. Respecting Article 15 of the Convention, he noted that while for several years the Committee of Experts had been requesting information about the existence of forced labour, the Government had not yet provided a response regarding the FUNAI employees' involvement in illegal recruitment of indigenous forced labour.
Referring to Articles 19 and 20 of the Convention, he noted that the Committee of Experts had been raising concerns with respect to the deplorable conditions of health of the indigenous populations in the country, in particular of Yanomamis. The shortage of resources was also mentioned. In the Committee of Experts' reports of 1997 and 1999 frightening information had been presented, namely that 21 per cent of the Yanomami population had died in a period of seven years; therefore, the population growth rate continued to be negative. He also expressed concern at the Government's refusal to define a health attendance plan for the indigenous populations.
In conclusion, he called on the Government, without further delay, to adopt the Bill respecting indigenous status, which had been before the National Congress since 1991, and to ratify the Indigenous and Tribal Peoples Convention, 1989 (No. 169). He asserted that the delay in adopting new legislation illustrated a lack of political will. He requested the Committee to recommend that an expert be sent to the country to investigate the facts concerning the violation of the Convention.
The Worker member of the United States evoked the memory of Chico Mendes, stating that his legacy had everything to do with the spirit and intent of the Convention since it was his vision that made the rights of the rubber tappers, sustainable development and environmental protection, and the case of security, land rights and democratic social and economic development for indigenous people part of the same struggle. While acknowledging that his own country was not blameless in its treatment of indigenous peoples, he stated that the irreparable and unspeakable harm, persecution and destruction that other nations had inflicted upon indigenous peoples could not serve as a justification for non-compliance with the Convention by those countries that had ratified it.
With respect to Decree No. 1775 of January 1996 and Ministerial Resolution No. 80 which overturned FUNAI's 1993 decision demarcating land for indigenous people in the Raposo do Sol region, he contended that there was a contradiction between these instruments and the facts set out in the Government's report to the Committee of Experts. The Government had stated that it was taking all necessary measures to expel garimpeiros from the Yanomami territory and that it had been actively cooperating with the Venezuelan authorities to ensure there would be no further unlawful mining of Yanomami lands. However, by means of Decree No. 1775 and Ministerial Resolution No. 80, the Government had guaranteed permanent enclaves of garimpeiros in Raposo do Sol and had removed 20 indigenous villagers from demarcated protection.
With regard to the proposed construction of hydroelectric power plants on indigenous lands, he asked whether the fourth project would be going ahead in view of the environmental issues concerned.
Nevertheless, he stated that with respect to the fourth project, Convention No. 107 effectively mandated the Brazilian Government to assess the impact on the indigenous population.
Regarding unlawful employment and forced labour practices concerning the indigenous population of the Mato Grosso do Sul, he noted the Government's comment that its Labour Inspectorate mobile coordination unit had observed no cases of forced labour. The Worker member of the United States questioned the efficacy of this investigative effort, particularly since the Committee of Experts had indicated that FUNAI's own review of the illegal employment question had not yet resulted in any definitive findings.
He concluded by stating that the day of reckoning had come and that it was time for the Government to comply fully with its obligations under the Convention. He concurred with the view expressed by the Worker member of Brazil that an expert should be appointed and sent to the country to verify and investigate the issues before the Committee.
The Government member of Germany recalled that the application of the Convention by Brazil had already been examined by the Committee on several occasions, and most recently in 1996. The situation had always remained more or less unchanged. The Committee of Experts' comments took note of serious shortcomings with regard to the protection of indigenous peoples, comments which the Government, in general, did not contest. The main problem in relation to the application of the Convention was the immensity of the territories in question and the lack of the necessary infrastructure. This meant that difficulties of access limited the authority of the State.
He also recalled that the Committee of Experts had on this occasion noted several aspects of the case with interest, an expression which customarily indicated that a preliminary stage had been reached before a case could be recognized as a case of progress. At the same time, the Committee of Experts had urged the Government to continue its efforts to improve the situation. In his view, the key issue revolved around Decree No. 1775 of 1995, concerning decisions on the demarcation of indigenous lands, and Ministerial Resolution No. 80, which considerably restricted the lands available to the indigenous populations concerned. He therefore welcomed the indication by the Government representative that some developments had occurred to remedy the situation.
In conclusion, he expressed the belief that the Committee should emphasize the positive elements of the case in its conclusions. The Government should be encouraged to strengthen its efforts to make concrete progress in the protection of indigenous and tribal populations.
The Government representative, in response to the comments made by the Employer and Worker members, expressed the belief that many of the points raised had already been covered by the information which he had provided at the beginning of the discussion. In response to the question raised by the Employer members concerning the extent to which the land demarcation process had progressed, he said that full information would be provided to the Committee of Experts on the proportion of indigenous lands which had already been demarcated and those which were still under examination. He estimated that this proportion might be in the region of two to one. He added that he had clearly stated that Ministerial Resolution No. 80 had been cancelled.
With reference to the new projects which were being undertaken to improve the health of the Indian population, he reaffirmed that their framework responded to the wishes expressed by the representatives of indigenous populations and NGOs. However, he took exception to suggestions that FUNAI might have been involved in illegal activities.
In response to a number of comments by Worker members, he stated that Bill No. 2057 of 1991 respecting indigenous status and Convention No. 169 was still under examination. Brazil was a democratic country and these matters depended on the decisions taken by Congress.
In reply to several comments made by the Worker members, he reaffirmed the information that the mobile coordination unit of the Labour Inspectorate, which had inspected the situation in the distilleries in Mato Grosso do Sul, had observed no cases of forced labour amongst the indigenous workers during the period covered by the Government's last report to the Committee of Experts. The fact that the comments of the Committee of Experts now placed less importance on this matter than in the past supported his contention that there had been an improvement in the situation.
The Government representative referred once again to the situation of the garimpeiros in the Yanomami lands. He noted that the methods used by garimpeiros included the rapid establishment of airstrips, through which large numbers of poor citizens could be brought to work in the area concerned within a short period of time. He believed that the most effective measures against the organizers of these activities were those that were currently being taken by the Government, namely measures to control their access to the lands by air and to close the shops through which the gold was bought and sold. It should not be forgotten that, without access by air, the garimpeiros would face enormous difficulties in entering the lands.
In conclusion, he emphasized that he had endeavoured to answer all the points that had been raised. However, if further progress were to be made, there was a great need for financial resources, training and cooperation with all the parties involved, including workers' organizations. His Government was taking serious action to resolve the problems in the application of the Convention. While thanking all the speakers for the comments that they had made, he could not help but note that some of the claims made by a number of speakers had been far-fetched and unwarranted by the facts.
The Worker members expressed doubt that much progress had been made in resolving many of the issues brought up by the Committee of Experts over the years and in improving the situation since the Conference Committee had last examined the case. They called for the Government to provide further information on many of these issues, and particularly the situation as regards forced labour in Mato Grosso do Sul and the occupation of indigenous areas by garimpeiros. They recalled in this respect that the entry of the gold-miners into indigenous areas constituted a major health hazard for the peoples who lived there. They also hoped that the Government would report to the Committee of Experts on the measures which had been taken to improve the health of indigenous persons. As concerns the Government's denial of cases of forced labour by indigenous workers, he referred to paragraph 18 of the Committee of Experts' report of 1998 citing 84 violations affecting 2,290 indigenous persons, including children. A disciplinary process was underway and the Experts had requested the Government to inform it of, among others, disciplinary action against those responsible. This information had apparently not yet been supplied by the Government.
The Worker members called on the Government to keep the Committee of Experts informed of the situation with regard to the construction of hydroelectric power plants on indigenous lands, as well as on the progress made in revising the legislation concerning indigenous peoples. Finally, they recalled the proposals that they had made when the Committee had last examined the case that representatives of indigenous peoples should be involved in developing appropriate responses to resolve all these problems.
The Committee noted the detailed oral and written information provided by the Government, and the discussion which took place in the Committee. It recalled that this case had been discussed many times over the years, most recently in 1996, and that the Committee remained concerned about the situation of the vulnerable indigenous peoples in the country.
The Committee welcomed the new measures taken concerning the standards to be respected in the employment of indigenous peoples in Mato Grosso do Sul, where there had been severe exploitation of indigenous labour in the distilleries. It requested the Government to report in detail on the implementation in practice of these new arrangements, and to make every effort to protect these populations from the exploitation to which they have been subjected. It also welcomed the information concerning the decision to reverse the earlier decision dividing indigenous areas in Raposo do Sol.
The Committee expressed renewed concern about the continued presence of garimpeiros (gold-miners) in indigenous areas, and its harmful effect on the health of the indigenous populations and their possibility to occupy their lands, though it welcomed the Government's continuing efforts to extract these gold-miners. In addition, it remained concerned about the deteriorating health situation of these peoples, while noting with interest the new information provided on coordination among the government services responsible for the health of indigenous populations. It hoped the Government would report to the Committee of Experts on the measures it was taking to protect the health of the indigenous populations.
The Committee noted the information provided on the construction of hydroelectric projects and requested it to continue to provide information in this regard in its next report.
Finally, the Committee requested the Government to inform the Committee of Experts in its next report of the progress made in revising the legislation concerning indigenous populations. The Committee hoped the Government would have recourse to the technical assistance of the Office for the implementation of the Convention.
The Employer members recalled that the Committee of Experts fulfilled the role of establishing the facts in relation to the application of ratified Conventions. The role of the Conference Committee was to discuss the cases on the basis of the facts ascertained by the Committee of Experts. They did not wish the Government representative to reach the wrong conclusions from the Committee's discussion of the present case. The Employer members applauded the positive steps which had been taken and the progress achieved in resolving a very difficult problem. However, they called upon the Government to make every effort to ensure that progress continued to be achieved.
Convention No. 108: Seafarers' Identity Documents, 1958
Russian Federation (ratification: 1969). The Government representative stated that the Ministry of Transport of the Russian Federation had asked that certain information be drawn to the Committee's attention including that the Government in 1997 and 1998, having taken into consideration the 1996 recommendations of the Governing Body, adopted new legal instruments governing the application of the Convention, namely, regulations on seafarers' passports which were adopted by Government Decree No. 1508 dated 1 December 1997, and the instructions concerning the application of the regulations, dated 30 June 1998. However, the Committee of Experts in its report published in 1999 again drew the Government's attention to various provisions of these instruments that in its view were not in conformity with the Convention.
With reference to Article 3 of the Convention, he referred to the fact that pursuant to the regulations and instructions, seafarers' passports can only be held for a limited period of time, namely, for up to five years with the possibility of extending it for a further five years. He noted that Article 2(1) of the Convention provides for the issuance of a passport indicating that the holder is a seafarer in cases where it is impracticable to issue identity documents to special classes of seafarers; however, the legal instruments introduced for the purposes of the Convention did not provide at all for the issuance of seafarers' identity documents. He stated that in the Russian Federation as in the former USSR, seafarers' identity documents were also passports subject to the Convention and to national instruments governing leaving and entering the country. The fact that these instruments were subordinated to national legislation had been pointed out by the Committee and was due to the existence of instruments governing seafarers' passports, the provision of which extend beyond the requirements of the Convention. The documents issued were intended to meet the requirements of the Convention, while also complying with the provisions of national legislation concerning entry and departure from the country and providing seafarers with certain advantages over ordinary citizens for the purpose of travel. He asserted that all the elements contained in Article 6(1) and (2) were covered through the issuance of one document. With respect to the period of validity of the identity document, he stated that this provides the seafarers with the advantage of not needing to reapply for a passport every five years, which normally takes one to three months, during which time the seafarer would not be able to leave the country.
On the question of the definition of the term "seafarer" and thus entitlement to the identity document, the Government representative of the Russian Federation, referring to the Committee of Experts' conclusions in this regard, stated that his Government was of the view that the recognition of the occupational status of the person as a seafarer was not the principal objective of the Convention, but that the occupational status of the seafarer was fixed primarily by the documents issued in accordance with the Convention of 1978 of the International Maritime Organization. He stated further that the question of the definition of the term "seafarer" was determined by the broad terms of Article 1 of Convention No. 108, in particular subsection 2 which states that "in the event of any doubt whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each country after consultation with the shipowners' and seafarers' organizations concerned". He stated that the Convention thus defers to national legislation to determine whether or not they wish to provide an extended interpretation of those to be considered "seafarers". He indicated that his Government, having consulted with the representatives of shipowners and seafarers, and pursuant to the majority opinion arising out of these consultations, decided to adopt an extended interpretation of those to be considered as seafarers for the purposes of the Convention; thus, in the view of his Government the requirements of Article 3 of the Convention had been fully observed in respect of the persons considered as seafarers. He noted that in the process of drafting the instruments for the application of the Convention, consultations were taken with organizations of shipowners and seafarers with the objective of ensuring as far as possible the observance of the requirements of the Convention, while taking into account the interests of Russian seafarers. He pointed in this regard to sections 9 and 10 of the regulations, providing that Russian seafarers terminating their employment relationship with shipowners must give their passport to the issuing body or another relevant state body for safekeeping. However, this requirement was not applicable to seafarers on leave between contracts, if they are noted in the registers of organizations for the placement and employment of seafarers, or are seeking employment. Seafarers were not required to surrender their passports to the placement agencies if they were employed within one month after the end of their contract with a Russian shipowner or within three months of the end of their contract with a foreign shipowner.
The Government representative proposed that Article 1(1) of the Convention be amended as follows to avoid further problems of interpretation: "This Convention applies to every seafarer who is engaged in any capacity on board a vessel, other than a ship of war, registered in a territory for which the Convention is in force and ordinarily engaged in maritime navigation, as well as to a seafarer, whose level of professional training and state of health correspond to the requirements established by international Conventions for the crew members of seagoing vessels, and who is prepared to be engaged in any position on board such vessels."
With reference to the request of the Committee of Experts that measures be taken to ensure that the identity document issued pursuant to and governed by this Convention be distinguished from passports and other documents of a purely national character, the Government representative acknowledged that the legal instruments in force introduced for the purposes of the Convention did to a certain degree go beyond the requirements of the Convention, in particular section 6 of the regulations establishing the period for which the seafarers' passport was issued, and section 11 setting out the procedure for their withdrawal where circumstances arise, triggering "temporary limitations" for leaving the country. He stated that this was necessary in order to comply with legislation governing the procedure for entry and departure from the country. He asserted that these provisions did not disadvantage seafarers, pointing to the fact that since the adoption of the regulations and the instruction there had been no complaints lodged by organizations representing Russian seafarers concerning their implementation.
In connection with the Law of 30 April 1999 "on the adoption and implementation of the merchant shipping code", pursuant to which the crews of Russian flagships could include foreign citizens and stateless persons, he informed the Committee that his Government was considering the matter of the preparation and issuing of seafarers' documents to be issued to Russian citizens as well as to foreigners and stateless persons employed on ships flying the Russian flag. He explained that the issuance of this identity document would not be linked to permission to leave the country. He concluded that while this document would no longer contain the inadequacies pointed to by the Committee of Experts, unfortunately, the advantages of the seafarers' passport would also be lost.
The Employer members recalled that consideration of this matter began with the representation pursuant to article 24 of the Constitution submitted by the Seafarers' Union of Russia following the refusal of the competent authority in Novorossiisk to issue identity documents to seafarers in accordance with the requirements of Convention No. 108. A tripartite committee had been established by the Governing Body to examine the representation. Although this committee had requested the Government to submit a report by September 1996, no report was received and two further dates set down for subsequent reports also passed without the reports being submitted. Thus, the Committee of Experts had no opportunity to examine the matter in the light of a government report, and as a result in 1997 and 1998 it was obliged to repeat its previous observations. The Employer members viewed this as a sign of very poor collaboration between the Government and the ILO supervisory bodies.
Referring to the statement of the Government representative of the Russian Federation, the Employer members indicated that many questions still remained unresolved. They noted that the legal provision requiring seafarers to surrender their national passports had been repealed, thus addressing one particular point that had been raised by the Committee of Experts; however, other issues raised were still far from being remedied. They recalled the purpose and content of the provisions of the Convention, as noted by the tripartite committee and the Committee of Experts, and the need to delineate clearly between seafarers' identity documents and documents for foreign travel. In their view, the statement of the Government representative of the Russian Federation, in particular the proposal to amend the terms of Article 1 of the Convention, confirmed that the Government had not yet fully complied with these important provisions and had illustrated the Government's attitude that it was not bound by the recommendations of the Committee of Experts and the tripartite committee.
The Employer members characterized the principal question at issue as the definition of "seafarer", and expressed the view that the Government representative had started from the wrong premise in relying on provisions of another organization with its own rules, namely the International Maritime Organization, which could not be used in interpreting the clear definition of "seafarer" set out in Convention No. 108. They also noted that, due to the definition provided in Article 1 of the Convention, seafarers registered with placement agencies or those seeking employment should be entitled to a seafarer's identity document; temporary unemployment should not deprive them of their status as seafarers or of their right to keep their identity documents. They stressed that the main purpose of the seafarers' identity document was not to replace passports since both documents have different purposes: seafarers' identity documents were intended to ensure that seafarers were permitted to take temporary shore leave which could be subject to very few exceptions linked to identity and public order.
The Employer members stated that problems had arisen due to the national legislation confusing documents for seafarers and passports for travel, resulting in restrictions on seafarers' documents. They stressed that, whilst it was permissible to have specific regulations concerning passports, passports and seafarers' identity documents needed to be kept distinct. They expressed regret that no indication had been given as to when, or indeed whether, the Government intended to implement the recommendations of the Committee of Experts in order to bring the law into full conformity with the requirements of the Convention. With reference to the statement of the Government representative concerning the tripartite consultations that had been undertaken, they expressed surprise that this had not been mentioned earlier, given the number of years that the Governing Body and the Committee of Experts had been examining this matter. They called on the Government to carry out consultations rapidly, to comply with the recommendations of the Committee of Experts, and to promptly forward its report to enable the Committee of Experts and the Conference Committee to re-examine this matter.
The Worker members thanked the Government representative of the Russian Federation for the information and additional explanations he had given. They noted that the case was being discussed in the context of a "footnote for the Conference" and expressed the view that the inclusion of such a note in relation to a Convention of a rather technical nature such as Convention No. 108 was unusual. According to the report, collaboration and communication between the Government and the Committee of Experts was not optimal and they regretted that that was the case. The fact that several ministries were involved, for example, the Maritime Transport Department in the Ministry of Transport and the Ministry of Labour, and that their interests and objectives sometimes diverged, should not constitute an excuse for the persistence of the problems.
They recalled that, in March 1996, the Governing Body had adopted recommendations and conclusions following a representation made by the Seafarers' Union of Russia. The Union had denounced the regulations on passports for seafarers adopted under Decree No. 146 of 24 February 1994. Pursuant to the regulations, applications for identity documents for seafarers could only be made by Russian shipowners, while seafarers had to have an employment contract with a Russian shipowner before being considered a seafarer and had to surrender their national passports when issued with a seafarer's identity document. The regulations had been drawn up without consulting seafarers' organizations and, according to the information available to the Worker members, they were intended to protect the interests of certain shipowners. The regulations flagrantly violated a number of important provisions in Convention No. 108. The Government should have supplied a report on the application of Convention No. 108 and the follow-up to the recommendations adopted by the Governing Body by September 1996 at the latest. The report would have allowed the Committee of Experts to monitor the case. Unfortunately, it had not been received and the Committee of Experts had to make a further request that it be sent by September 1997. The Government's report had finally been received in November 1997, too late for consideration by the Committee of Experts. Moreover, the report due in November 1998 had only been received in mid-November, in other words, just a few days before the session of the Committee of Experts. The latter report was simply based on that of 1997.
The Committee of Experts had also made some observations on Convention No. 108 in its general report. The Worker members had some major concerns in that respect. Identity documents allowed seafarers to leave their ships when in port and to return to the country that had issued the document. Without such a system, seafarers would have to remain at their place of work without any break, which would be intolerable. Convention No. 108 was intended to improve the difficult working and living conditions of seafarers. In some countries, the delivery and continuous possession of identity documents were directly or indirectly used to bind seafarers to a particular shipowner. That could lead to significant abuse and have an impact on seafarers' rights to work and freedom of work.
The 1995 representation raised six issues of law and practice. The Government of the Russian Federation had subsequently indicated that it had amended some aspects of the legislation, but according to the Committee of Experts and the information available to Worker members, there were still problems. The definition of the term "seafarer" was too narrow. Article 1, paragraph 1, of the Convention clearly stated that the Convention applied to every seafarer who was engaged in any capacity on board a vessel other than a ship of war. Paragraph 2 provided that, in the event of any doubt, the competent authority should determine the question after consultation with the shipowners' and seafarers' organizations concerned. The Government had stated that it had amended the legislation. It would appear, however, that the new legislation was still not in compliance with the Convention. Seafarers had to meet two criteria: firstly, they had to be in possession of a certificate in conformity with the provisions of the 1978 international Convention of the International Maritime Organization. The latter Convention was much more limited than the ILO's Convention No. 108 because it only covered officers. Able seamen or auxiliaries were excluded. Secondly, seafarers had to be in possession of an employment contract. Consequently, seafarers registered with an employment bureau were not covered.
Regarding the refusal by the Novorossiisk authorities to issue identity documents to seafarers without distinction as to which shipowner was their employer, they noted that Article 2 of Convention No. 108 provided that the Member must issue to each of its nationals who was a seafarer on application by him "a seafarer's identity document". The Convention did not allow the documents to be issued through a shipowner. There was thus a substantial risk of abuse. In this particular case, the port authorities wished to protect the interests of a particular shipowner. The seafarers could not be recruited by rival companies. The port authorities of Novorossiisk or other ports might in the future try to give certain Russian shipowners special advantages.
With regard to the requirement that the identity document be surrendered to the issuing authority for safekeeping on completion of each contract, the Committee of Experts had emphasized that the status of seafarer was not limited to periods under contract. The Government had indicated that it had amended the relevant legislation. The Committee had nevertheless noted with concern that the most recent legislation retained provisions that were contrary to the Convention. The Government had voiced fears that identity documents would be misused. Prevention of misuse, however, should not lead to denial of rights granted under the Convention.
Regarding the individual right of seafarers to apply personally for their identity documents, the Government had indicated that seafarers (or some of them) already had the right to apply personally for such documents. In relation to the failure to consult seafarers' trade unions when drawing up regulations relevant to seafarers, the Worker members were not yet convinced that such consultations had actually been held. According to the Committee of Experts, the format of the identity document adopted by the authorities was such that it could be used as an international travel document. The Committee had, however, stressed that seafarers' identity documents did not serve the same purpose as passports, and the status and format of identity documents were directly covered by Article 4 of Convention No. 108 and not by national legislation.
The Worker members took note of the statement by the Government of the Russian Federation that, on the one hand, seafarers were now able to apply personally for identity documents and, on the other, that the requirement to surrender a national passport in order to obtain a seafarer's identity document had been abolished. They noted, however, that the Committee of Experts considered that several aspects of the legislation did not yet comply with the Convention. They were not, therefore, in a position to judge whether the legislation and practice as a whole were now in compliance with the Convention. They concluded that the Government should in any event amend the national provisions (laws, regulations, implementing decrees, orders) and practices in order to protect the rights of all seafarers in accordance with the Convention. The Government had given few explanations on the issue and it should transmit all the information requested by the Committee of Experts within the time limits.
The Worker member of the Russian Federation expressed his gratitude for the comments of the Committee of Experts, with which the Russian trade unions fully concurred. He drew the Committee's attention to two aspects of the case under consideration. Firstly, the problem of having one document function both for foreign travel and for seafarers' identity was raised. He explained that there was an historical basis for this combination of functions: the USSR had a closed system and the Government wanted to limit the right to leave the country. He recalled that when the USSR collapsed in 1991 and the Russian Federation came into existence in 1992, the Seafarers' Union of Russia requested the state authorities to address this matter to ensure that the functions of a passport and those of a seafarer's identity document would no longer be combined. He noted that the seafarers' identity document within the meaning of Convention No. 108 does not have a period of validity which is convenient for both seafarers and employers since it confirms their occupational status in the case of a change of working conditions or transfer to another shipowner or company without the need of any other document. Since a passport has a period of validity, a seafarer is required to again collect the relevant documents once it has expired. He asserted that the identity document was an important addition to other documents identifying a seafarer's qualifications, and provided information concerning how long a seafarer had worked in a particular position, providing a basis to make an assessment of relevant experience. He noted that there would be a division of functions between the issuing bodies of seafarers' identity documents and a passport: the former would be issued by the Ministry of Labour and the Ministry of Transport while the latter would be issued by the Ministry of Domestic Affairs and the Security Forces. He queried why this issue had remained unresolved for so long, suggesting that it was intended to be an indirect limitation on leaving the country in order to prevent well-qualified seafarers from leaving in order to work on ships under flags of convenience. In his view, however, the existence of these restrictions could, in fact, result in seafarers leaving the country permanently; nevertheless, if they had been given permission to leave and then return, these well-qualified workers would likely come back once the economy improved. He asserted that this aspect of the problem could easily be resolved by the Government if it indeed had the will to do so.
The second aspect of the problem to which he drew the Committee's attention concerned the definition of "seafarer" in Article 1 of the Convention. While agreeing that the wording of the definition could give rise to varying interpretations, he stated that if one accepted the interpretation of his Government, it would give the impression that there were no unemployed seafarers in the country, since when the seafarer becomes unemployed, the seafarer's passport is withdrawn, thus he or she ceases to have the status of a seafarer. He proposed the following amended definition for the purposes of Article 1: "For the purposes of this Convention, the term "seafarer" shall mean a person who, based on professional qualifications and conditions of health, is prepared to occupy any position on board a ship, other than a ship of war, registered in a territory for which the Convention is in force and ordinarily engaged in maritime navigation".
The Worker member of Zimbabwe recalled that this matter had been before the Governing Body in March 1996 pursuant to a representation submitted by the Seafarers' Union of Russia and that the Government had failed to submit the report requested by the Governing Body. The principal question that had been raised at that time was the interpretation of the definition of "seafarer" and consequently entitlement to identity documents. In this regard, he noted that the Committee of Experts in its report had clearly interpreted what the Government referred to as "the root cause of the problem" and provided a detailed analysis of the provisions of the Convention. He, therefore, called upon the Government to comply with the provisions of the Convention as explained by the Committee of Experts and not to rely on an interpretation that suited its own internal regulations. He strongly encouraged the Government to take all necessary measures to implement the recommendations, particularly to amend the regulations to meet the obligations arising under this Convention which it had voluntarily ratified.
The Government representative in response to the discussion offered his Government's apology for the untimely submission of the reports and affirmed that this would not happen again in the future. He expressed his Government's wish to do what was necessary to ensure closer cooperation with the Committee of Experts and the Conference Committee. He thanked all the members of the Committee who had made comments and confirmed that his Government would give them all due consideration.
The Committee noted the oral information given by the Government representative, as well as the subsequent discussion that took place. It recalled that the Committee of Experts had formulated lengthy comments and observations regarding the application of the various articles of the Convention. It also recalled that the Committee of Experts had taken due note of the conclusions and recommendations adopted by the Governing Body in March 1996 following the representation under article 24 of the Constitution.
The Committee regretted that the oral information provided by the Government representative was the same as the information already made available to the Committee of Experts last year. The Committee also noted with deep concern that no substantial progress in the compliance by the Government with the recommendations of the Convention could be noted since then. The Committee strongly urged the Government that the next report to be submitted to the Committee of Experts should already contain details of the concrete measures taken so that the full application of the Convention in law and practice could be noted in the very near future.
Convention No. 111: Discrimination (Employment and Occupation), 1958
Islamic Republic of Iran (ratification: 1964). The Government representative of the Islamic Republic of Iran stated that the policy of the Government had been to promote actively and enhance the participation of women in all political, economic and social activities, including under a policy of equal opportunity. This policy also incorporated further measures which actively and positively aimed at the empowerment of women to increase their presence and participation in all spheres of social life. He stated that in support of this objective, a bureau was established in the Presidential Office, special advisory posts to enhance the role of women were established in all government ministries as well as in the judiciary, and national and provincial committees were established; altogether there was an extensive campaign on the part of the Government in this regard. He added that some 201 offices were working throughout the country to formulate local-specific programmes contributing to the promotion of women's rights and their empowerment. He stated that civil society had also undertaken a vast campaign to further enhance the role and participation of women. More than 90 women's NGOs and associations were active in the country, some of which had even gained consultative status within the UN system. The media had also joined a lively debate on the rights, role and participation of women.
Concerning the education, training and employment of women, he noted that the literacy rate of the female population had increased from 26 per cent in 1976 to 74.2 per cent in 1996. With regard to the younger generation, he stated that the literacy rate was much higher, as more than 95 per cent of teenage girls were literate. The average level of education of the female population had also risen. The number of girls leaving school after primary and secondary education was falling, while the share of those with higher education degrees was constantly increasing. Apart from the increase in the total number, the ratio of female higher education students to the total number of women students had more than tripled in the ten-year period from 1986 to 1996. Statistics also indicated that, in some subject areas, the number of women graduates would outnumber male graduates. In 1992, some 47.5 per cent of physicians and paramedical specialists in the country had been women. This ratio was changing rapidly, as both the ratio of women entrants and graduates of medical studies increased. At present, 60.2 per cent of current students in medical sciences were female and 39.8 per cent were male. This was clearly a significant change, as women graduates would extensively outnumber male graduates.
He added that 83.6 per cent of the active female population had been employed in 1976. In 1996, this rate had increased to 86.7 per cent, while in the same period the total female population had increased by 80 per cent. In urban areas, women were mainly employed in services. In the rural areas, their main employers were industry and production sectors. In 1996, about 46 per cent of working women had been employed in services, 34.5 per cent in industry and 17 per cent in agriculture. The total number of women working in the country had increased by 81 per cent in the ten-year period from 1986 to 1996. The increase in the total number of working women had been 44 per cent in the 1991-96 period. The number of women in public wage and salary employment had increased by 452,000, 290,000 and 84,000 persons as compared to 1976, 1986 and 1991 respectively. The number of women wage and salary earners in the private sector had also increased by 150,000 and 131,000 persons as compared to 1986 and 1991 respectively. The number of women employers had increased by 11,000 and 6,000 since 1976 and 1991 respectively. Over the same period, the number of women self-employed workers had also increased by 216,000, 166,000 and 90,000 since 1976, 1986 and 1991 respectively. In the provinces of Isphahan, Bushehr, Chaharmahal and Bakhtiari, Ghom, Kurdistan and Yazd, the unemployment rate of women was lower than that of men. Other interesting information which should be noted was that women's employment in the public sector had doubled between 1981 and 1991.
He stated that the numbers spoke for themselves. The increase in the number of employed women was quite significant. The statistics also indicated that there had been a trend of women moving away from simpler jobs and an increase in their share of more sophisticated jobs. In 1979, only 13 per cent of women had been employed in professional, technical and scientific jobs. This percentage had increased to 39.7 per cent in 1991. The number of women in managerial and decision-making positions was increasing several-fold, particularly under the new Government. The number of women in the judiciary was also significant and the number of women judges was also increasing. Women held positions as judges of investigation, deputy head of the provincial judiciary, court judges, and also at such higher judicial ranks as judges of the Court of Appeal. The highest position held by a woman was the Deputy General Prosecutor of the Supreme Court of the country. In addition to the universities which offered degrees in law, several women were currently studying at the College of Judicial Sciences, which was affiliated to the judiciary and was the main institution for the training of judges.
The above information clearly demonstrated that the increase in employment and in higher education of women was more than a trend: it represented a significant achievement. The figures also showed that further significant developments were to come, as the investment in the higher education of women would continue to show its effects for several years. He stated that the activities of the Bureau for Women's Affairs was another example of the political will at the highest level to intervene and enhance the employment of women. With a view to integrating the promotion of the gender dimension more effectively into all national policies, the head of the Bureau for Women's Affairs was participating in all the cabinet meetings of the Government. A Commission on Women's Employment had also been established. The Commission was composed of the representatives of various ministries and also the Planning and Budget Organization. The Committee of Experts had also been supplied with a copy of the National Plan of Action for Women and the progress report on the implementation of the Beijing Declaration.
He then addressed two issues raised in the report of the Committee of Experts. One was section 1117 of the Civil Code, which had been adopted in 1934. The Committee had asked to be informed of developments regarding the revision of section 1117. The answer was that section 18 of the Act on the Protection of Family, adopted in 1975, had revised section 1117 of the Civil Code. With regard to the dress code for civil servants, he emphasized that dress codes were not discriminatory, since both men and women had to respect them. Several countries had dress codes for their public servants. The Committee of Experts had inquired in this respect about the possibility of dismissal. However, he affirmed that this was not the case. Dismissal was for more serious infringements. The usual sanction was a written notification to the employee. Section 9 of the Act on Administrative Infringements enumerated the administrative sanctions, copies of which had been provided to the Committee of Experts.
With regard to the employment of Baha'is, he drew attention to the fact that the general employment situation of the Baha'is had been addressed in several previous reports, which had stated that neither the Constitution nor the Labour Code contained criteria for employment leading to or incorporating discrimination on any basis mentioned in the Convention. Over several years, several copies had been provided of the respective legal provisions, as well as copies of claims, rulings and even various forms that had to be filled in by the parties to any dispute on employment, terms and conditions of employment or dismissal. All that documentation bore witness to the policy of non-discrimination.
Decisions on recruitment to public institutions were and should be based on the principle of non-discrimination and consideration of the constitutional mandate of state institutions, the needs of the relevant institution, the qualifications of the individual, and the need to ensure the security of the State. These considerations could not be deemed to be discrimination. The rights of citizens, including the right to employment, were universal and applied to all citizens. Not being a member of an official religion did not deprive any individual from his or her rights as a citizen. The Constitution was explicit in stating that everyone had the right to employment and the Government had to ensure equal treatment in access to employment. He added that the Government was strongly committed to the full implementation of the Constitution.
With regard to religious minorities, in its long report to the Committee of Experts the previous year, detailed statistics had been provided on the active population, employment, unemployment, previous employment and the non-active population, including the student population, for each of the religious minorities. All the facts and figures available underlined that the religious minorities benefited from the national policy of non-discrimination in employment and access to employment and were employed in various occupations, both in the public and private sectors. The distribution of population according to religion was 99.56 per cent Muslim, 0.05 per cent Zoroastrian, 0.13 per cent Christian, 0.02 per cent Judaism, and 0.25 per cent other religions non-declared. The total active population of the country was 16,027,223. The active population of the Jewish religion was 3,480, of whom 3,164 persons were employed and 316 were unemployed. The active population of Christians was 25,687, of whom 23,748 were employed and 1,939 were unemployed. The active population of Zoroastrians was 7,973, of whom 7,287 were employed and 686 were unemployed. He stated that the statistics showed that the religious minorities had even higher rates of employment than the national average, as noted by the Committee of Experts in its report. Moreover, on the question of terms and conditions of employment, in addition to the non-discriminatory legal provisions which applied to all workers, the Committee of Experts had already been provided with information on individual cases which proved that all cases were dealt with in a non-discriminatory manner. No one was required to disclose his or her religion in filing a complaint to the labour courts and tribunals and no one could make a ruling based on the religion of any party to the conflict.
In conclusion, he stated that there had been an important development that he wanted to bring to the attention of the Committee. Two ILO missions from the Bureau of Workers' Activities and the Bureau of Employers' Activities had recently visited the country. Both of the missions were quite successful. Based on such experiences, it has been decided to invite an ILO technical mission to the country to discuss the application of the Convention, and to forward a written invitation as soon as possible. He expressed the hope that the Committee would take into account the information and substantive report which was just provided, as well as the significant steps which had been taken in cooperating with the ILO.
The Worker members thanked the Government representative for the information. Nevertheless, as it contained information received during the work of the Committee, they could only take note of it and wait for the results of examination of the information by the Committee of Experts.
The case of the Islamic Republic of Iran had already been discussed on numerous occasions: from 1983 to 1990, then in 1993, in 1996 and in 1997. In 1996 and in 1997, very firm conclusions had been set out in a special paragraph and adopted because the Government had not accepted a direct contacts mission. The purpose of such a mission would be in particular to collect verified and objective information on the spot. Genuine and constructive dialogue was not possible if one had only unchallenged information on the application in law and practice of the Convention concerned.
The report of the Committee of Experts dealt with two questions: discrimination on the basis of sex and religious discrimination. The report of the Government, according to the Committee of Experts, neither contained information on the possible opposition of the husband to the wife's taking up employment or exercising an occupation, nor on the consequences for employment security in the event of a woman's non-compliance with the dress code.
There was a major problem in that information provided by the Government did not enable the Committee to understand the situation in practice. The Government provided very general data on employment of women and access of women to training and occupations. These figures did not enable verification of the change in the presence of women in the labour market taking into account the significant growth of the population, kind of functions and changes in economic structures. The Government representative provided additional statistics today, but these could not yet be assessed.
Moreover, the governmental system was unusual in that it was bipolar. With regard to constitutional institutions such as Parliament, the Government and the President, there were parallel decision-making centres that based their competence particularly on religion and certain laws. This system complicated comprehension of the true situation and the actual scope of some laws, ordinances and decisions regarding the situation of women and religious minorities in employment and occupation. According to information available to the Worker members, laws, directives and recent practice strengthened discrimination with regard to women and religious minorities. In particular, this concerned segregation on the basis of sex with respect to health care, extension of the right of the husband to oppose his wife's access to high-level training, and the decision to the effect that the position of director of religious minorities schools was reserved for persons who were adherents of Islamic principles and practices.
With regard to discrimination on the basis of sex, according to the information contained in the report the situation regarding the employment of women seemed to be improving. However, it was necessary to compare the absolute figures in the context of a female population of 30 million. The number of women who had paid work varied according to the sources from 600,000 to 1.7 million. In general, the number of women working was estimated to be less than 10 per cent of the workforce. Women did not have access to important positions such as those of judges. Nevertheless, the Government representative just provided contradictory information on this matter before the Committee. This information must be verified. The Committee must have available to it information on the actual impact of non-compliance with the dress code by women, and in particular the consequences of possible termination of employment, as well as the application of the right of the husband to oppose his wife's employment and training.
With respect to religious discrimination, the Committee of Experts referred to the conclusions in the report of the Special Rapporteur of the Human Rights Commission, according to which the Baha'is and other religious minorities were the victims of significant discrimination in employment and occupation. The Committee of Experts indicated that, according to information provided by the Government, efforts had been made to improve the employment situation of religious minorities recognized as such -- which excluded the Baha'is. However, the figures provided by the Government did not permit a realistic evaluation of employment. According to the Worker members' information, the number of persons belonging to religious minorities had greatly lowered because of their migration. Moreover, most of these persons did not work under employment contracts or in the public sector but as self-employed persons or in the informal sector. The Baha'is were formally excluded from employment in the public sector. This discrimination was contrary to the Convention.
The Worker members emphasized that this Committee and the Committee of Experts should have verified and objective information without delay. They insisted on the importance for this purpose of sending a direct contacts mission. The Government representative today made a proposal in this regard. According to this proposal, the Government would invite an ILO technical mission. This could mean a first step subject to the fulfilment of certain conditions. This mission must not be limited to a few exchanges of views of a technical nature. It must meet the following objectives: to collect data, with the possibility of verifying and comparing information; to address all the questions raised in the report of the Committee of Experts; and to make a report to the Committee of Experts. The Worker members requested that these elements be accepted by the Government and that they be included in the conclusions of the Committee. In this way the Committee would be in a position to continue to follow the case. If these conditions were not fulfilled, this would be the equivalent of a refusal of the mission.
The Employer members thanked the Government representative for the information provided. They noted that the case had a long history, having been discussed a number of times by the Committee since 1980, and having featured seven times in a special paragraph. They stated that in part it seemed that they were at the dawn of something positive in this case, but cautioned that the dawn brings the beginning, not the end. With respect to the statistics that had been provided, the Employer members were of the view that while the rate of growth was in and of itself impressive, they still did not know in absolute terms the relative position of women in education and in the labour market.
On the issue of the obligatory dress code for female public servants, the Employer members noted that the Committee of Experts had requested information on the sanctions that could be imposed and on the implementation of the Act on Administrative Infringements. However, specific information in this respect had not been provided by the Government representative. Turning to section 1117 of the Civil Code, they noted the statement of the Government representative to the effect that this had been revised in 1975, but regretted that no indication had been given as to how it had been revised or the implications of such revision. They called on the Government to provide concrete information showing that section 1117 no longer existed.
In the view of the Employer members, the most dramatic part of this case concerned the long-standing problem with Baha'is. They noted that the Committee of Experts had referred to continued persecution, including refusal of entrance to universities, and dismissals from employment, and the Employer members had information to the effect that such practices and persecution were continuing. The Government had not provided any specific information with respect to the participation rate of Baha'is in the private or public sector. They noted that while the Committee of Experts had also asked for information concerning different workers' representation mechanisms and the number of Baha'is participating in these different mechanisms, the Government representative had provided no information on this matter. They expressed regret that while the Government appeared to be saying that all citizens had the right to be treated equally whether or not they were members of a recognized religion, at the same time it was stating that national security was paramount.
They stated that a fundamental characteristic of this case had been the unwillingness of the Government to accept a direct contacts mission to evaluate the situation. The Government representative had, however, given some indication of the Government's willingness to explore in a more definitive way a means of resolving this conflict. They stressed that the Government needed to accept a mission that would be undertaken as a serious endeavour and include the provision of verifiable and reliable information on the laws and their implementation and statistics showing the actual situation, so that the Committee of Experts would be able to evaluate the situation in full knowledge of the facts.
The Government member of the Netherlands, speaking also on behalf of the Government members of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Ireland, Norway, Sweden, the United Kingdom and the United States, noted with interest the information provided by the Government and welcomed that some progress had been made in increasing female participation in employment and education, giving rise to the hope that further progress would be possible in this regard. He stated that an increasingly active policy of the Government in this area could and should lead to a more rapid achievement of equal opportunities for men and women, including at the level of higher education. With respect to the responses that the Government had provided on the issue of the possible revision of section 1117 of the Civil Code, his Government intended to study these closely.
He expressed regret that the progress made concerning the participation of women in the workforce and in education was not matched by the efforts made towards the abolition of discrimination on the basis of religion. Although real efforts had been made to allow for the improvement of the employment situation of members of the recognized minorities, the fact that only a number of religious minorities were recognized resulted in discrimination in employment and education. The documented information demonstrated that this held true particularly for the Baha'is, the largest but still unrecognized religious minority in the country. The lack of figures in the report to the Committee of Experts on the employment of Baha'is as well as those not professing any religion was disappointing in their view, and he called on the Government to provide these figures in writing.
He concluded by noting that on a number of occasions the Government had committed itself to cooperate with international bodies, including the ILO, and stressed that while such commitments were welcome, it was time for the Government to live up fully to such commitments in order to ensure full compliance with its obligations under the Convention. His Government welcomed the announcement to invite on short notice an ILO mission and indicated that the dialogue with the ILO begun a couple of years ago would be greatly enhanced by such a mission and would provide a good opportunity to effectively counter existing scepticism.
The Worker member of the Netherlands, commending the Committee of Experts for its observation in this case, stated that it illustrated the importance of the Committee of Experts' report as providing an objective and impartial basis for the Committee's discussions. With respect to the Government's use of the term "technical mission", he stated that it seemed not to refer to a technical assistance mission, which normally would be undertaken where there were no political difficulties between the ILO and the Government concerning the changes that needed to be made. Here, however, there clearly were some political difficulties; therefore, he requested the Government to clarify that it was not requesting a technical assistance mission. He agreed with the points raised by the Worker members to be investigated during the mission, and added that the issues relating to the Islamic Labour Councils should also be addressed, including whether these Councils represented all workers in the company without discrimination. He stressed that it was important to get out of the deadlock that the Committee had been in, and expressed the hope that the mission to the country would bring some improvement, but cautioned that the mission could only be an instrument for improvement and was not an end in itself.
The Worker member of Turkey referred to section 6 of the Labour Code of Iran: "Iranians, whatever their tribe or ethnic group, enjoy the same rights; skin colour, race, language and the like do not constitute any privilege or distinction". In his view, the absence in this provision of any direct reference to sex created the impression that men were given a privileged position and that women were discriminated against in employment. He stated that the serious discrimination with respect to marriage, inheritance, guardianship, and divorce, stipulated in the Civil Code and still in force, had its parallels in employment and occupation. He called on the Government representative to provide more information on a number of specific points:
- were any jobs and occupations restricted to or totally forbidden for women? Would it be possible to give information about the regulations issued under section 75 of the Labour Code concerning types of prohibited work for women?;
- were there any women judges who could preside over trials and give verdicts? Had the Code concerning the conditions for selection of judges, which stipulates that only a male Muslim may become a judge, been amended to bring it into harmony with the Convention?;
- were there any legal or de facto obstacles to the promotion of women to superior positions in the public service and in private establishments?;
- was there strict segregation in employment and occupation in the health service and in education between men and women?;
- was there a ban on the employment of women and men who did not strictly respect religious dress requirements?;
- were there provisions in the legislation requiring the prior permission of the husband in order for a women to obtain employment?
He asserted that sections 75-78 of the Labour Code seemed to have been formulated based on the totally unfounded view that women are feeble creatures who needed to be defended by men. He asked whether amendment of these sections was envisaged. On the issue of discrimination in employment and occupation based on religion, he requested the Government representative to provide information on whether Muslims who openly did not fulfil their religious obligations suffered any negative consequences in relation to employment, and on whether the differences of the Sunnis led to discrimination in employment.
The Worker member of Colombia stated that the Workers were obliged to express their point of view in the face of the continued violation of the Convention by the Government. He added that the report of the Committee of Experts stated that there had been substantial advances made with regard to discrimination based on sex; however, the complaints made in various instances showed that the situation for women was improving very slowly. He referred to the repeated complaints of religious discrimination, which meant that it was impossible for many Iranians to have access to education and employment in the public administration. He indicated that when women were able to obtain positions in courts, they were relegated to dealing with family matters without the power to impose sentences. On the other hand, he indicated that discrimination against women could be reflected in the domestic abuse of women, as related by the press. He concluded by requesting the Government to respect the rights of religious minorities and of women.
The Worker member of Italy indicated that to a certain extent the report of the Committee of Experts gave the impression that there was a trend towards improvement of the situation regarding discrimination on the basis of sex and discrimination against religious and ethnic minorities. The willingness of the authorities of the Islamic Republic of Iran to continue cooperating with the ILO appeared to be a step forward. Acceptance of a qualified ILO mission could constitute a real change of attitude, as Iran had never accepted the visit of a Special Rapporteur of the United Nations Human Rights Commission. The opening of schools and occupations to women must be strengthened by other measures taken in their favour: the reduction of pressure on women in family and society, and revision of the Civil Code. Since 1997, some positive signs had been noted such as the appointment of women to responsible political positions. One could observe that women had been appointed to positions of responsibility in the Ministry of Environment and the Ministry of Culture.
However, as highlighted in the report of the Committee of Experts, discrimination against religious and ethnic minorities with regard to access to training and employment continued. Statistical data on the unemployment rate for these minorities referred to in paragraph 4 of the report must be specified more precisely to enable comparisons to be made. Persons who wanted to enter university must undergo an Islamic theology exam. This prevented members of religious minorities from gaining access to higher education. Similarly, persons who wanted employment in the public sector must fulfil requirements with regard to the Islamic religion. Religious minorities were therefore excluded from the public administration. The Worker member indicated that workers belonging to the Baha'i community who had been dismissed in the 1980s had not been compensated. On the contrary, they were required to give back the salaries and pensions that they had received or face imprisonment. If there really were possibilities for trade union representation of religious minorities, as the Government indicated (see paragraph 7 of the report), one could perhaps hope for ratification by the Islamic Republic of Iran of Conventions Nos. 87 and 98. But the spokesperson was rather of the view that independent trade unions were still prohibited in the Islamic Republic of Iran, as was made known by the CISL (see paragraph 123 of the General Report of the Committee of Experts). The Italian trade unions were in favour of encouraging dialogue among countries, even when conditions were difficult. They had asked the Government of Italy, during the recent visit of the President of the Islamic Republic of Iran to Italy to assert in the context of political and economic relations between the two countries the requirement that there be development in human rights, freedom of association and equality for all workers.
The Worker member of Pakistan noted that as the Islamic Republic of Iran was a neighbouring nation to his own with close historical ties, any developments in that country would have an impact on Pakistan. He welcomed recent developments in the country including the strengthening of democracy and the steps taken to improve dialogue with the West. He pointed to recent discussions between the Government and the Vatican resulting in a commitment to have a more open policy on religion. In this context he drew attention to the comments of the Committee of Experts concerning discrimination on the basis of religion, and expressed the hope that the Government would honour its commitment to promote and encourage religious minorities and women in employment and education. Noting the Government's intention to invite a technical mission to the country, he urged the Government to examine closely the points raised by the Committee of Experts concerning the various contradictions between the national law and practice and the provisions of the Convention. He hoped that the technical mission would lead to progress and continued cooperation.
The Employer member of the Islamic Republic of Iran thanked all the speakers for their comments, in particular the Government representative for informing the Committee of its willingness to accept an ILO mission. In his view such a mission would improve the country's image. He requested that should such a mission come to the country, it consult not only with the Government, but also with the employers' organizations. Regarding the improving role of women in the country, he pointed to the fact that his company had received three international standards on women. In his view the best way to understand the progress that had been achieved in the country would be to come to the country. He was optimistic that a number of improvements would result from the ILO mission.
The Government representative thanked all the speakers, but noted that it would be difficult to answer all their questions at this time. He would, however, try to respond to a number of the questions orally, and any outstanding questions would be addressed later in writing. He acknowledged that there had been a great deal of information and statistics put before the Committee which could only be noted by them and then more closely examined by the Committee of Experts at a later stage. He stated that this case had a long history and he hoped could be concluded in a constructive manner. He affirmed his Government's commitment to real dialogue.
With respect to the criticism concerning the general nature of the figures provided, he explained that he had set out the percentage increases as had indeed been requested by the Worker members of this Committee two years previously. The absolute numbers and percentages most recently requested by the Worker members would be made available to the Committee of Experts and to the members of the ILO mission. Regarding the concern raised that only some religions were recognized, he sought to clarify the provisions of the Constitution which made reference to particular religions only for reasons of personal status, so that questions concerning marriage, wills and heritage would be determined according to their own traditions. However, with respect to employment, the Constitution provided rights to "everyone". He stressed that the Government was committed to ensuring full compliance with the provisions of the Convention. On the question raised as to the reliability of the statistics provided, he stated that they were official statistics. He also confirmed that members of religious minorities were employed in the public sector and the civil service. Responding to the query of whether women could teach boys, he stated that there was no prohibition and in fact at the university level, 35 per cent of the academic staff were women. While there were no female ministers, he stressed that a woman held the position of Vice-President of the country and that there was a female vice-minister. The number of women members of Parliament had increased and presently stood at 14. In the recent city and village council elections, 114 women had been elected.
With respect to the request for clarification made by the Worker member of the Netherlands as to the nature of the technical mission, he confirmed that his Government was not calling for a technical assistance mission, but rather a mission to discuss the application of the Convention. He noted that in future, however, technical cooperation may be requested as a follow-up to the technical mission. In response to the comments made by the Worker member of Turkey, he stated that the Labour Code contained the reference to sex as another prohibited ground of discrimination, and referred in this regard to the report submitted to the Committee of Experts. He stated that no jobs were forbidden to women. Concerning article 75 of the Labour Code dealing with difficult and harmful occupations, he noted that this issue had been raised by the Committee of Experts a few years previously and a detailed text had been provided in response. After the issue had been studied by the ILO, it was concluded that the provision was not discriminatory. He asserted that articles 75 to 78 of the Labour Code were based on ILO Conventions, and indicated that more information on this matter would be provided to the Committee of Experts in the Government's next report. On the issue of whether non-practising Muslims were discriminated against, he stressed that the Government did not investigate who is practising and non-practising.
Some of the issues raised by the speakers, such as the issue of domestic violence, were not directly related to the Convention, he contended that based on international comparison, the rate of domestic violence in the country was relatively low due to cultural traditions. He disagreed with the comment that there had been increasing pressure on women. He stated that if education and employment of women had been increasing, it was due to policies to empower and encourage them. On the issue of trade union representation, he stated that information would be provided to the Committee of Experts, but assured the Committee that independent trade unions were not prohibited.
He expressed his Government's commitment to inviting an ILO mission to the country to discuss the application of the Convention, including with regard to sex and religion and any other matters related to the application of the Convention. His Government had no objection to the mission also discussing these issues with the Iranian employers' organizations. Concerning the paramountcy of state security mentioned by the Employer members, the Government representative had mentioned this matter only in relation to public institutions and as one of the considerations. He confirmed that female judges could give verdicts.
With respect to the issues mentioned by the Worker members regarding the technical mission, the Government representative confirmed that the mission would discuss the questions of facts and interpretations. He concluded by confirming that the Government had decided definitively to invite an ILO mission.
The Worker members, referring to the statement of the Government representative of the Islamic Republic of Iran, emphasized that it was most important that the agreement regarding the mission's objectives be clear. The four objectives that had been previously mentioned had not been contradicted by the Government representative in his comments. The Worker members understood in particular that information could be collected, that the mission could address all the questions raised by the Committee of Experts and that it would make a report for submission to the Committee of Experts.
The Committee took note of the detailed oral information given by the Government representative, as well as the subsequent discussion. It recalled that this case had been discussed in the Committee frequently over the years. It noted the efforts to promote employment of women and recognized religious minorities, but also noted with concern that the practical impact of those measures remains unclear, and that considerable problems in the application of the Convention persisted. It welcomed the Government's request for a technical mission to examine all the points raised by the Committee of Experts and the present Committee concerning the application of the Convention. It further noted the Government's willingness to improve the application of the Convention. It hoped that the mission would be carried out as soon as possible so that its results could be examined by the Committee of Experts at its next session. The Committee also asked the Government to continue to supply the Committee of Experts with full information on the measures taken to eliminate any form of discrimination prohibited by the Convention with regard to access to employment in law and practice. Finally, it expressed the firm hope that the Government would soon be in a position to report to the Committee of Experts that its law and practice were in conformity with the Convention on all the grounds covered by it.
Convention No. 118: Equality of Treatment (Social Security), 1962
Libyan Arab Jamahiriya (ratification: 1975). A Government representative of the Libyan Arab Jamahiriya, underlined that there was a linkage between the various observations concerning his country formulated by the Committee of Experts throughout its report but, as requested, he would address only those relating to Convention No. 118. Concerning these observations, the Government representative referred to a letter sent by the Director-General of the ILO which his Government did not receive until the beginning of June of this year. He declared that he would transmit the comments of the experts to the specialized agencies in his country in order to address the various issues concerning the Social Security Act No. 13 of 1980. He reaffirmed that his country was abiding by ILO principles and with international labour standards. He recalled the various obstacles his country had faced in reporting to the ILO in the light of the air blockade which his country had experienced. In conclusion, he reiterated his Government's intention to cooperate and trusted that the situation would improve in the near future.
The Employer members observed that this case was one of the rare cases where the Government representative had failed to provide any information on the subject under examination. They recalled that the Committee of Experts' report had already been published two months before and expressed surprise at the statement by the Government representative that the Government was not aware of the content of the comments by the Committee of Experts. In addition, the Government had had several days to prepare its statement since the adoption of the list of cases to be examined in the Committee. They also emphasized that this was not a new case as it had already been discussed at the Conference Committee in 1992 and that the Committee of Experts had made comments for several years with regard to the implementation by the Libyan Arab Jamahiriya of this Convention.
As regards pensions, non-Libyan residents received only a lump sum in the event of a premature termination of their work, whereas nationals were guaranteed the right to maintain their remuneration. There were also differences in treatment between nationals and non-nationals in law and in practice in other sectors of social security. They noted, for instance, that the subscription to the national social security scheme was compulsory for nationals, whereas it was voluntary for certain categories of foreign workers. This constituted a clear violation of the principle of equality of treatment in the Convention. Moreover, and without prejudice to special social security arrangements, non-nationals who had not completed ten years' contributions to the social security scheme were not, contrary to nationals, entitled either to an old-age pension or to a pension for total incapacity due to an injury of non-occupational origin. Another subject of discrimination was Regulation 161 of the Pension Regulations of 1981 which provided that pensions or other monetary benefits were only transferred to beneficiaries resident abroad in the event of a special agreement between the Libyan Arab Jamahiriya and the foreign country in question. The Employer members considered that this form of discrimination was particularly serious in view of the increasing number of migrant workers and the fact that a large number of foreign workers had been expelled from the country.
In conclusion, the fact that the Government representative had not provided any detailed information constituted a bad example of a lack of collaboration between the Government of the Libyan Arab Jamahiriya and the Conference Committee. The Government should, therefore, be urged to bring its national legislation and practice into conformity with the provisions of the Convention. Moreover, the clear discrepancies between national legislation and the provisions of the Convention noted by the Committee of Experts for several years should be reflected in a particularly strong manner in the conclusions.
The Worker members supported the observations of the Employer members, thus noting with regret that the Government representative had not touched on the case itself in his intervention. They recalled that the Committee had discussed this case in 1992; the Committee of Experts, moreover, had drafted observations in 1992, 1994, 1995, 1996 and 1998, not to speak of the direct requests addressed to the Government since 1978, that is three years after the ratification of the Convention by the Libyan Arab Jamahiriya.
The Worker members recalled that the Convention guaranteed equality of treatment of foreign workers with nationals in respect of social security, at least regarding the branches of social security recognized by the Convention. The Worker members noted that this country had accepted equality of treatment for all the branches of social security listed in Article 2, paragraph 1, of the Convention. However, they expressed great concern at the thousands of foreign workers, coming in particular from Arab and other countries, who had been expelled. They further stressed the fact that the legislation dealt differently with foreigners in cases of an early cessation of activity. While nationals had the right to maintenance of their wages, migrant workers only had the right to a lump sum. It was also the case that migrant workers who had not fulfilled a qualifying period of ten years of contributions to the social security scheme did not have the right to old-age pensions, to invalidity pensions where the accident was not occupational, to pensions and benefits owed to spouses or other dependants of the deceased. However, this condition did not apply to nationals. Finally, foreign workers had no guarantee that their pensions and other benefits would be paid abroad. The Worker members stressed that payment abroad was a right provided for under Article 5 of the Convention. Once again, the Worker members regretted, as had the Committee of Experts, that no new information had been provided. The Worker members urged that the Libyan Arab Jamahiriya should respect its obligations to foreign workers. They requested that the most precise and concrete conclusions as possible should be formulated and that finally, after so many years lacking in action, the Government should reconsider the situation and take the necessary measures. The Government should also avail itself of ILO technical assistance. It should pay the benefits and sums due to expelled workers according to the terms of the Convention. It should also calculate the amounts due in this connection since the expulsions, liberate budgetary funds or credits and pay these amounts, including to workers living abroad. Finally, the Government should supply detailed information within the time limits to the ILO.
The Government representative re-emphasized that the national procedures for modifying laws were time-consuming. He also wished to reaffirm that his Government was not trying to avoid responding to the comments made by the Committee of Experts but that it had been unable to do so because the comments had not been received in Arabic. With reference to some of the comments made, he declared that, to the extent that foreign workers had been expelled, this had been done for proper reasons. The blockade that the Libyan Arab Jamahiriya had been subjected to had affected migrants and nationals alike. To the extent that it was alleged that the Libyan Arab Jamahiriya owed any monies to individual workers, he requested a list substantiating these allegations which would permit his Government to examine the claims. He reasserted his Government's intention to submit the comments by the Committee of Experts regarding Convention No. 118 to the proper national and local authorities and that the National People's Committee, after holding the required consultations, would proceed to introduce the necessary modifications in its national legislation.
The Employer members pointed out that Libyan Arab Jamahiriya ratified the Convention in 1975. The Committee of Experts had made six comments since the beginning of the 1990s, regarding inequalities in the country's social security scheme. In fact, this issue had been raised by the Committee of Experts on 13 occasions since 1978. For over 20 years, the Committee of Experts had asked the Government to bring its legislation in line with the provisions of the Convention, but the Government had not indicated that it was taking any steps to address the issues raised in the Committee of Experts' report. In the circumstances of this case, the statement of the Government representative was inadequate.
The Worker members supported the previous observations formulated by the Employer members.
The Government representative indicated that his Government did not reject the principle of equality set forth in the Convention. He confirmed that his Government would re-examine the situation and report to the Committee of Experts. He expressed the hope that his Government's next report would satisfy the Committee's request and fulfil its obligations in respect of the Convention.
The Committee took note of the information provided orally by the Government representative and the discussion which followed. The Committee noted with serious concern that no new and substantial information had been provided by the Government since the case had been examined by the Committee in 1992. It recalled that at that time the Committee expressed the hope that the Government would be in a position to amend its legislation to bring it into full conformity with the Convention. The Committee, however, noted with serious concern that, despite the time which had elapsed, serious divergencies continue to exist between the Convention and the national legislation and practice. The Committee also noted with profound regret that, up to now, the Government had still not taken up the offer of technical assistance made by the Committee in 1992 and by the Committee of Experts on many occasions. In view of the technical nature and complexity of the subjects examined, the Committee reminded the Government that the ILO was available to provide the technical assistance in the field of social security necessary to facilitate the application of the Convention so as to be able to note concrete progress in one of its future meetings. It also strongly urged the Government to provide the Committee of Experts with a detailed report on specific and concrete measures taken to bring the legislation into full conformity with the Convention and ensure its effective implementation.
Convention No. 111: Discrimination (Employment and Occupation), 1958
Afghanistan (ratification: 1969)
Convention No. 87: Freedom of Association and Protection of the Right to Organise, 1948
Djibouti (ratification: 1978)
The Worker members recalled that the Committee had expressed grave concern regarding the measures taken and the practices used by the Government of Afghanistan, as well as other authorities, to prohibit the education of young girls and to prohibit women from working and to marginalize as much as possible the lives of hundreds of thousands of widows. The reports of the Special Rapporteur of the United Nations Human Rights Commission, the Secretary-General of the United Nations as well as the observations of the ICFTU and Amnesty International on the situation of women, revealed that the authorities imposed on women extremely difficult living and working conditions. The Committee of Experts having, in addition, learned about the regulatory text which restrained in a drastic manner the employment of women, could not help but observe the dramatic deterioration of the situation of women. The measures taken by the authorities had serious consequences on the health and teaching system, which had repercussions for women, young girls and young boys. Moreover, the almost generalized prohibition of women from working had dramatic consequences on the implementation of United Nations and NGO humanitarian programmes. The Committee of Experts highlighted, in the strongest terms, the violation by Afghanistan of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and also referred to discrimination based on political opinion. The Worker members stressed before the ILO and the delegates of the three groups present at the Conference that international and bilateral initiatives be taken to draw the attention of the Government in power in Afghanistan, as well as all the responsible politicians of this country, to the absolute necessity of taking urgent measures for the purpose of ending the very serious discrimination exercised against women in employment. Confronted with a case of such importance, the ILO and the entire international community must take responsibility.
The Worker members recalled that the Committee of Experts was particularly concerned by the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), by Djibouti. Serious contraventions of freedom of association had taken place and continued to exist in law and in practice. The Committee on Freedom of Association had examined complaints concerning very serious anti-trade union measures of reprisal taken against the leaders of the Djibouti Labour Union and the General Workers' Union of Djibouti, as well as against militants and members of these organizations. However, the Government promised, in January 1998, as a result of a direct contacts mission of the ILO led by Professor Verdier, a member of the Committee of Experts, to re-establish dialogue with trade unions and genuine workers' representatives. The Committee of Experts also observed that several provisions of the legislation were seriously in contravention of Convention No. 87, such as the requirement of prior consent to trade union constitutions, prohibition against foreigners from becoming trade union officers, and the extensive powers of the President of the Republic to bring a strike to an end upon demand. The Worker members considered that this case raised important questions and that the Government should take measures as soon as possible that would enable a renewal of the dialogue.
The Employer members regretted that certain governments had not responded to the invitation which had been made to them to come to the Committee in order to discuss questions relating to the application of ratified Conventions by their countries. They referred in particular in this respect to the Governments of Afghanistan and Djibouti. The Committee of Experts had made comments in its report which gave rise to serious concerns with regard to the application of certain Conventions by those countries. It was for that reason that they had been included in the list of cases proposed for discussion. In these circumstances, the conduct of these countries in not coming forward when requested displayed an uncooperative attitude towards the work of the Committee and of the Organization as a whole. The report of the Committee of Experts contained a great deal of information on the cases in question and the Employer members encouraged all those concerned to read the respective comments very carefully.
The Committee took note of the statements made by the Worker and Employer members regarding the application of Convention No. 87 by Djibouti and the application of Convention No. 111 by Afghanistan.
Updated by HK. Approved by RH. Last update: 26 January 2000.